A  HISTORY 


OF 


MILITARY  GOVERNMENT 

IN  NEWLY  ACQUIRED 

TERRITORY  OF  THE  UNITED  STATES 


BY 


DAVID  YANCEY  THOMAS,  M.A. 

Sometime  University  Fellow  in  History 


SUBMITTED   IN   PARTIAL   FULFILMENT   OF   THE   REQUIREMENTS 

FOR   THE   DEGREE   OF   DOCTOR   OF   PHILOSOPHY 

IN  THE 

FACULTY  OF  POLITICAL  SCIENCE, 
COLUMBIA  UNIVERSITY 


IRew  Ji>orfe 

19O-4 


LIBRARY 

UNIVERSITY  OF  CALIFORNIA 
DAVIS 


A  HISTORY 

OF 

I      MILITARY  GOVERNMENT 

IN  NEWLY  ACQUIRED 

TERRITORY  OF  THE  UNITED  STATES 


BY 


DAVID  YANCEY  THOMAS,  M.A. 

Sometime  University  Fellow  in  History 


SUBMITTED    IN   PARTIAL   FULFILMENT    OF   THE   REQUIREMENTS 

FOR   THE   DEGREE   OF   DOCTOR   OF   PHILOSOPHY 

IN  THE 

FACULTY  OF  POLITICAL  SCIENCE, 
COLUMBIA  UNIVERSITY 


IRew 

19O4 


LIBRARY 

UNIVERSITY  OF 
DAVIS 


COPYRIGHT,  1904, 

BY 
DAVID  YANCEY  THOMAS 


PREFACE 

WHEN  the  Constitution  of  the  United  States  was  drafted 
and  adopted  no  specific  provision  was  made  for  expansion. 
In  consequence  of  this,  some  have  doubted  whether  we  had 
the  power  to  acquire  new  territory,  and  especially  to  incor 
porate  it  with  the  old.  In  spite  of  this,  however,  we  have 
acquired  a  domain  much  larger  than  that  comprised  within 
the  boundaries  of  the  original  thirteen  States.  The  govern 
ment  of  such  territory  before  its  incorporation  has  pre 
sented  some  interesting  problems. 

The  framers  of  the  Constitution  probably  thought  that 
they  had  subordinated  the  military  to  the  civil  power  in 
almost  all  cases,  but  a  century  has  seen  a  remarkable  growth 
in  the  scope  of  the  former.  It  would  be  absurd  to  think  of 
a  civil  power  in  hostile  territory  superior  to  the  military 
power  occupying  the  country;  but  upon  the  transfer  of 
sovereignty  the  territory  ceases  to  be  hostile,  unless  a  serious 
insurrection  is  raised,  yet  the  military  continues  to  admin 
ister  affairs  until  Congress  provides  some  form  of  govern 
ment.  Even  in  territory  acquired  by  treaties  of  purchase 
in  times  of  peace  the  military,  or  at  least  the  Executive  pre 
rogative,  which  is  generally  based  upon  military  authority, 
has  played  a  more  or  less  important  part  until  such  action 
by  Congress.  For  that  reason  the  governments  of  Louisiana 
and  Florida  in  the  transition  stage  have  been  included  in 
this  study,  though  there  may  be  some  doubt  as  to  whether 
they  were  strictly  military.  At  any  rate  they  were  so  re 
garded  by  some  at  the  time,  and  perhaps  they  were  more 
military  than  civil. 

191]  7 


8  PREFACE  [IQ2 

The  legal  status  of  new  territory,  and  the  legal  basis  for 
military  government  and  its  various  administrative  activi 
ties,  must  receive  much  attention  in  this  book,  but  those 
topics  are  not  all  that  is  included  in  the  purpose  of  the 
work.  It  is  designed  to  present  also  an  account  of  the 
actual  management  of  new  acquisitions  from  the  time  of 
occupation  until  the  organization  of  territorial  or  state  gov 
ernments.  As  to  Louisiana,  Florida,  .New  Mexico,  and 
California,  this  plan  involves  practically  a  political  his 
tory  of  those  regions  during  that  period.  In  the  case 
of  Texas,  there  was  no  transition  stage,  strictly  speaking. 
In  the  case  of  Alaska,  Hawaii,  Porto  Rico,  the  Phil 
ippines,  and  Samoa  it  has  seemed  unnecessary,  not  to  say 
improper,  to  go  into  details  upon  the  same  scale.  The  treat 
ment  accorded  to  them  is  intended  to  show  the  development 
in  military  government  since  the  Mexican  War,  or  its  ap 
plication  under  modern  conditions;  also  to  show  how  the 
constitutional  questions  involved  were  met,  that  the  reader 
may  compare  recent  action  in  this  matter  with  earlier  cases. 
What  has  been  the  character  of  these  later  governments, 
what  they  have  accomplished  for  good  or  evil,  is  left,  for 
the  most  part,  to  the  reader's  memory  of  partisan  accounts, 
or  to  the  researches  of  a  later  historian,  when  the  air  shall 
have  cleared  and  the  evidence  shall  be  complete  and  acces 
sible.  Cuba  is  not  included  because  not  yet  a  part  of  the 
United  States,  though  she  has  felt  the  arm  of  our  military 
power. 

Despite  the  fact  that  military  government  is  coming  to 
be  circumscribed  more  and  more  by  rules  and  regulations, 
the  prejudice  against  it  seems  to  be  as  strong  to-day  as  ever. 
This  is  true  not  only  in  the  South,  where  the  military 
governments  are  remembered  chiefly  for  the  evil  they 
wrought,  but  throughout  the  country  in  general.  The 
author  is  unconscious  of  having  started  out  with  any  pre- 


193] 


PREFACE 


conceived  notions  or  prejudices  one  way  or  the  other  re 
garding-  the  subject  here  treated.  He  has  endeavored  to 
set  forth  in  their  proper  relations  the  facts  as  found,  that 
they  might  tell  their  own  story.  What  has  been  the  char 
acter  of  military  governments  over  occupied  hostile  territory 
and  over  new  cessions,  except  our  latest,  he  hopes  the  reader 
may  be  able  to  gather  from  a  perusal  of  the  following  pages. 

In  making  acknowledgments,  the  author  cannot  fail  to 
mention  Professor  Frederick  W.  Moore,  Ph.  D.,  of  the  Van- 
derbilt  University,  who  first  suggested  this  field  as  a  good 
one  for  investigation.  The  Hon.  M.  A.  Otero,  Governor 
of  New  Mexico,  and  the  Hon.  L.  B.  Prince,  President  of 
the  New  Mexican  Historical  Society,  have  been  very  cour 
teous  in  answering  letters  of  inquiry.  The  officials  of  the 
War  and  Treasury  Departments  at  Washington  also,  especi 
ally  the  Hon.  Charles  E.  Magoon,  of  the  Bureau  of  Insular 
Affairs,  have  been  very  kind  in  supplying  information  by 
letter  and  through  their  official  publications.  Professor  J.  B. 
Moore,  LL.  D.,  of  Columbia  University,  has  piloted  the 
author  past  several  rocky  shoals  in  the  sea  of  international 
law,  and  has  rendered  invaluable  assistance  in  seeing  the  book 
through  the  press.  But  thanks  are  due  first  of  all  to  Pro 
fessor  Wm.  A.  Dunning,  Ph.  D.,  of  Columbia  University, 
who  has  taken  an  interest  in  the  book  from  its  inception,  has 
read  the  manuscript,  and  has  made  many  valuable  sug 
gestions.  To  him  also,  as  well  as  to  Dr.  Alvin  S.  Johnson, 
of  Columbia  University,  the  author  is  indebted  for  assist 
ance  in  reading  the  proof. 

HENDRIX  COLLEGE,  ARKANSAS,  May  i,  1904. 


TABLE  OF  CONTENTS 


PAGE 

INTRODUCTION 15 

BOOK  I 

LOUISIANA  AND  FLORIDA  IN  TRANSITION 

CHAPTER  I 

LOUISIANA 

I.  Taking  Possession 23 

II.  Social  and  Political  Condition  of  Louisiana 25 

III.  Constitutional  Basis  of  the  New  Government 30 

IV.  The  Work  of  Administration  and  Its  Effects 38 

CHAPTER  II 

THE  ANNEXATION  OF  WEST  FLORIDA 

I.  How  the  Conquest  was  Effected 45 

II.  Legal  Aspects  of  the  Annexation 49 

CHAPTER  III 

> 
THE  CONQUEST  OF  EAST  FLORIDA 

I.  Gradual  Encroachment  and  Final  Seizure 54 

II.  Justification  of  the  Seizure 59 

III.  The  Military  Administration 62 

CHAPTER  IV 
THE  FINAL  ACQUISITION  OF  FLORIDA 

I.  Taking    Possession    of    the  Country.     Its    Condition.     Reor 
ganization    65 

II.  Review  of  the  Governor's  Action 72 

195]  I* 


12  CONTENTS  [I96 

PAGE 

CHAPTER  V 
THE  ADMINISTRATION  OF  AFFAIRS  IN  FLORIDA 

I.  The  Callava-Fromentin  Affair 77 

II.  The  Heirs  of  Vidal  vs.  Innerarity 81 

III.  Opinions  and  Counter  Opinions    .    .    .    • 84 

IV.  East  Florida  and  Other  Affairs 91 

V.  Departure  of    Governor   Jackson.     Effects  of    His  Adminis 
tration  94 

VI.  The  Territorial  Government  Organized 97 


BOOK  II 

MILITARY  GOVERNMENT  IN  NEW  MEXICO  AND 
CALIFORNIA 

CHAPTER  I 
THE  OCCUPATION  OF  NEW  MEXICO 

I.  The  Conquest  and  Reorganization 101 

II.  The  Conquest  in  Congress.     Acts  of  the  Conqueror  Reviewed.  106 

III.  The  Conquered  Country.     Its  New  Government 114 

IV.  The  Revolt  and  Reconquest U7 

CHAPTER    II 
THE  MILITARY  ADMINISTRATION  OF  NEW  MEXICO 

I.  The  Struggle  for  a  Free  Government 128 

II.  Review  of  the  Military  Regime 149 

CHAPTER  III 
THE  OCCUPATION  OF  CALIFORNIA 

I.  The  First  Conquest  and  Reorganization      159 

II.  California  at  the  Time  of  the  Conquest 168 

III.  The  Revolt  and  Reconquest 172 


CONTENTS  I3 

PAGE 

CHAPTER  IV 
DIVISION  OF  THE  SPOILS 

I.  The  Quarrel  of  the  Victors 176 

II.  Fremont's  Administration 181 

III.  Fremont  Ousted  by  Kearny 185 

CHAPTER  V 
THE   FINAL  REORGANIZATION 

I.  Setting  up  the  "  Civil  "  Government .     193 

II.  The  Regulation  of  Foreign  Trade 195 

III.  The  Status  of  California  before  and  after  the  Treaty 203 

CHAPTER  VI 
THE  MILITARY  RULE  IN  CALIFORNIA 

I.  The  Administration  of  the  Customs  and  the  "  Civil  Fund  "    .    218 
II.  Internal  Administration:  a.  Legislative  Decrees,     b.  Courts 
and    Municipalities,     c.  The    Indian,   Mission,  and    Land 

Policy  of  the  Occupants 228 

III.  Efficiency  of  the  Military  Government 239 

CHAPTER   VII 
THE  END  OF  THE  MILITARY  REGIME 

I.  Manifestations  of  Discontent  and  the  Call  for  a  Constitutional 

Convention 254 

II.  Formation  of  the  State  Government 271 


BOOK  III 

ALASKA  AND  OUR   INSULAR  POSSESSIONS 

CHAPTER  I 
ALASKA     ....       279 

CHAPTER  II 
HAWAII 281 


14  CONTENTS  [I98 

CHAPTER  III 
THE  PHILIPPINES,  PORTO  Rico,  SAMOA,  AND  PANAMA 

I.  The  Occupation  of  the  Philippines 282 

II.  Military  Rule  in  the  Philippines 289 

III.  Military  Rule  in  Porto  Rico +>&*•& 3°3 

IV.  The  Occupation  and  Government  of  Tutuila,  Samoa  .  .    .       ,  311 
V.  The  Panama  Canal  Zone 3!4 

VI.  The  Instruments  of  Government 318 

CHAPTER  IV 

THE  POLITICAL  STATUS  OF  AND  CIVIL  RIGHTS  IN  OUR  NEW  POS 
SESSIONS  321 


INTRODUCTION 

THE  United  States  have  acquired  new  territory  in  sev 
eral  different  ways:  by  treaties  of  purchase,  by  conquest 
followed  by  treaties  of  cession,  and  by  occupation  and  par 
tition.  In  practically  all  important  acquisitions  of  territory, 
except  in  the  case  of  Texas  and  Hawaii,  there  was  a  transi 
tion  stage,  during  which  the  new  territory  was  held  and  gov 
erned  in  a  manner  not  expressly  provided  for  in  the  Con 
stitution.  In  most  cases  the  transition  stage  has  ended  in 
some  form  of  territorial  government;  in  one  case  it  ended 
in  a  state  government.  During  the  transition  stage  the  new 
territory  was  held  under  what  is  commonly  called  military 
government.  This  fact  necessitates  at  the  very  beginning 
of  this  study  an  examination  of  what  is  meant  by  military 
government. 

Chief  Justice  Chase  has  attempted  to  define  three  kinds 
of  military  jurisprudence:  military  law,  military  govern 
ment,  and  martial  law  proper.  The  first  consists  of  the  rules 
and  articles  of  war  as  used  for  the  regulation  of  armies  in 
the  field.  His  definitions  of  the  other  two  are  almost  too 
vague  for  formulation,  but  he  makes  the  second  apply  to 
occupied  hostile  territory,  the  third  to  domestic  territory  in 
time  of  invasion  or  special  danger.1 

It  is  only  within  the  last  century  that  the  distinction 
between  military  law  and  martial  law  has  been  clearly  drawn 
in  England  and  America.  The  difference  has  been  well 

1  Dissenting  opinion,  Ex  parte  Milligan,  4  Wall.,  141   et  seq. 
199]  15 


1 6  INTRODUCTION  [2OO 

stated  by  Chief  Justice  Chase,  and  it  is  hardly  necessary  to 
add  anything  here  to  what  he  has  said  on  the  subject.  But 
the  vagueness  of  his  distinction  between  military  govern 
ment  and  what  he  styles  martial  law  proper  renders  doubt 
ful  the  propriety  of  his  divisions.  Indeed,  it  can  be  shown 
that  what  the  learned  judge  has  endeavored  to  set  off  into 
two  distinct  classes  are  but  different  manifestations  of  one 
and  the  same  thing.  With  military  law  we  shall  have  no 
further  concern. 

Neither  the  Constitution  nor  the  statutes  of  the  United 
States  give  us  much  help  in  the  definition  of  martial  law, 
for  it  is  not  mentioned  in  either,  at  least  in  a  definitive  way. 
"  According  to  every  definition  of  martial  law,"  said  Attor 
ney-General  Cushing,  "  it  suspends,  for  the  time  being,  all 
the  laws  of  the  land,  and  substitutes  in  their  place  no  law — 
that  is,  the  mere  will  of  the  commander."  1  Such  was  the 
old  view,  probably  based  on  a  similar  statement  by  the  Duke 
of  Wellington.  Such  is  practically  the  view  to-day  also; 
but  of  late  there  has  been  a  tendency  to  move  away  from  the 
bald  statement  that  martial  law  is  the  mere  will  of  the  mili 
tary  commander,  and  to  justify  it  by  "  the  common  law  of 
acts  done  by  necessity  for  the  defense  of  the  commonwealth 
where  there  is  war  within  the  realm."  '2  Martial  law  is  the 
basis  of  military  government,  and  necessarily  applies  in 
occupied  hostile  or  foreign  territory.  It  may  be  applied  to 
domestic  territory  under  certain  conditions,  but  its  applica 
tion  in  the  one  case  differs  materially  from  that  in  the  other. 
The  latest  authoritative  declaration  of  what  is  allowable  in 
the  former  may  be  found  in  the  second  convention  of  the 
Hague  Conference,  where  it  is  said  that  "  the  occupant 
shall  take  all  steps  in  his  power  to  re-establish  and  insure, 

1  Opinions  of  Attorneys-General    (Cushing),  viii,  374. 
*  Pollock  in  London   Times,  March   10,   1902. 


201  ]  INTRODUCTION  17 

as  far  as  possible,  public  order  and  safety,  while  respect 
ing,  unless  absolutely  prevented,  the  laws  in  force  in  the 
country."  1 

This  simply  means  that  the  machinery  of  government 
falls  into  the  hands  of  the  military  occupant,  who  may 
permit  it  to  continue  in  operation,  or  alter  it,  or  abolish 
it  altogether.  If  the  local  laws  remain  and  the  native 
officials  continue  in  office,  it  is  only  by  his  direc 
tion,  or  on  sufferance.  It  is  true  that  only  extreme 
necessity,  the  welfare  and  safety  of  the  army  of  occu 
pation,  will  justify  violent  changes,  but  the  occupant 
is  practically  the  judge  of  the  necessity.  In  any  case,  the 
responsibility  for  the  management  of  the  government  de 
volves  upon  the  commanding  general.  The  last  century 
has  seen  a  decided  tendency  to  limit  his  powers,  and  this 
has  found  expression  in  the  quotation  from  the  Hague 
Convention.  While  he  is  still  left  rather  free  under  the 
law  of  necessity,  he  must  be  able  to  substantiate  the  neces 
sity  under  the  laws  of  nations.  The  course  of  this  study 
will  show  that  measures  have  been  taken  by  military  occu 
pants  within  the  last  century  which  could  not  be  justified 
under  this  rule.  In  addition  to  these  limitations,  the  gen 
eral  may  be,  but  commonly  is  not,  limited  by  special  laws 
enacted  by  the  legislature  of  the  country  to  which  his  army 
belongs.  Such  a  system  we  call  military  government. 
After  the  acquisition  of  conquered  territory,  the  military 
government  continues  de  facto  until  altered  by  the  new 
sovereignty. 

The  nearest  approach  which  the  Constitution  makes  to 
a  mention  of  martial  law  is  in  that  clause  which  authorizes 

1  Article  xliii.  Holls,  The  Peace  Conference  at  The  Hague,  447.  A 
more  elaborate  statement  may  be  found  in  the  "Instructions  for  the 
Government  of  the  United  States  Armies  in  the  Field,"  issued  April 
24,  1863.  Offic.  Rec.  (Reb.),  Serial  no.  124,  pp.  148  et  seq. 


18  INTRODUCTION  [2O2 

the  suspension  of  the  privilege  of  the  writ  of  habeas  corpus 
when  in  cases  of  rebellion  or  invasion  the  public  safety 
may  require  it.  Such  a  suspension  does  not  bring-  about 
a  complete  state  of  martial  law.  On  the  other  hand,  the 
proclamation  of  martial  law  suspends  the  writ,  whether 
any  mention  is  made  of  the  suspension  or  not;  for  the  will 
of  the  commander  can  never  be  supreme  so  long  as  the 
writ  may  be  used  against  him.  These  facts  might  produce 
some  doubts  as  to  whether  it  was  intended  that  martial 
law  should  ever  be  proclaimed  on  domestic  territory.  When 
any  part  of  the  country  has,  by  insurrection  or  rebellion, 
defied  and  thrown  off  the  home  government,  such  region  is, 
for  the  time  being,  no  longer  domestic  territory,  but  has,  to 
all  intents  and  purposes,  become  hostile  or  foreign.  The 
enforcement  of  martial  law  over  such  a  district,  when  con 
quered,  until  the  civil  power  can  be  re-established,  cannot 
be  questioned.  But  martial  law  is  often  proclaimed  over 
territory  confessedly  domestic.  Such  must  inevitably  be 
the  case  where  an  insurrection  covers  the  entire  area  of  a 
state.  In  this  instance  the  proclamation  is  but  the  an 
nouncement  that  the  civil  authorities  are  insufficient  to  cope 
with  the  disorders,  and  must  be  supported  by  the  military. 
Again,  martial  law  has  been  proclaimed  in  territory  not  in 
insurrection  at  all,  but  threatened  by  foreign  invasion,  as 
at  New  Orleans  by  General  Jackson.  Finally  it  has  been 
enforced,  at  least  certain  features  of  it,  where  there  was 
neither  insurrection  nor  danger  of  invasion,  as  in  the  North 
ern  States  during  the  Civil  War,  and  in  the  Southern  States 
long  after  the  insurrection  was  declared  at  an  end.  In  all 
these  cases  the  ostensible  purpose  was  to  uphold  the  de  jure 
government. 

And  herein  lies  the  distinction  between  military  govern 
ment  and  martial  law  on  domestic  territory.  The  former 
supplants  the  existing  government,  whether  it  be  de  jure 


203]  INTRODUCTION  19 

or  de  facto;  the  latter  professedly  supports  the  de  jure 
government.  In  giving  this  support  the  military  commander 
rises  superior  to  the  laws  of  ordinary  times.  He  may  arrest 
and  detain  individuals  not  connected  with  his  army,  and 
even  punish  them;  he  may  interfere  with  the  established 
courts;  he  has  even  gone  so  far  as  to  disperse  a  state  legis 
lature;  but  he  does  not  formally  assume  the  management 
of  civil  affairs.  These  go  on  as  before,  except  in  the  par 
ticular  cases  in  which  he  interferes.  But  his  will  is  supreme 
wherever  he  sees  fit  to  make  it  so.  Such  a  condition  in 
France  is  known  as  the  "  state  of  war,"  and  is  recognized 
in  the  French  law.1  That  it  has  no  distinctive  name  in 
American  and  English  jurisprudence  is  the  fault  of  our 
nomenclature — or  of  our  jurists. 

While  recognizing  the  fact  that,  in  England  and  America, 
martial  law  on  domestic  territory  is,  and  can  be,  regulated 
by  no  constitutional  or  statutory  law,  commentators  say 
that  it  must  be  exercised  with  due  moderation  and  justice, 
in  accordance  with  the  "  paramount  necessity  "  which  alone 
calls  it  into  being,  and  with  the  general  rules  of  public  law 
as  applied  to  the  state  of  war.  It  cannot,  therefore,  they 
say,  be  despotically  or  arbitrarily  exercised  any  more  than 
any  other  belligerent  right ;  and  in  case  of  abuses  redress  may 
be  had  in  civil  courts,  or  by  impeachment,  after  the  restor 
ation  of  the  civil  law.2  It  is  spoken  of  as  the  "  dominant 
military  rule  exercised  under  ultimate  military  and  civil 
responsibility." 

That  there  is  some  possibility  of  redress  is  evidenced 
by  the  fact  that  the  legislatures  of  the  United  States  and 

1  The  three  conditions  are :  E'tat  de  paix,  etat  de  guerre,  et  etat  de 
siege.  Block,  Dictionnaire  de  V Administration  Frangaise  (1898),  pp. 
1109  et  seq. 

aHalleck,  International  Law  (London,  1893),  ii,  544;  Birkhimer, 
Mil  Govt.  and  Mar.  Law,  338. 


20  INTRODUCTION  [204 

Great  Britain  have  passed  bills  of  indemnity,  after  the  ex 
ercise  of  martial  law,  in  order  to  protect  officers  from 
prosecution  for  acts  done  by  virtue  of  their  extraordinary 
powers.  Though  generally  very  sweeping  in  its  terms,  this 
indemnity  legislation  has  not  always  been  construed  by  the 
courts  to  cover  every  conceivable  act.  In  a  few  cases  sub 
ordinates  have  had  to  suffer  for  unwarranted  acts,  in  spite 
of  bills  of  indemnity.1 

But  all  this  qualification  of  the  commander's  power  de 
pends  upon  the  return  of  the  previously  existing  civil 
conditions.  Happily  such  has  always  been  the  case 
in  England  and  the  United  States,  but,  theoretically 
at  least,  the  fact  remains  that  the  military  commander, 
in  the  United  States,  the  President,  can  rise  superior  to 
all  laws,  except  possibly  the  law  of  humanity.  Unusual 
cruelty  might  provoke  foreign  intervention.  If  he  is  the 
judge  of  the  necessity  of  proclaiming  martial  law,  he  is 
likewise  the  judge  of  the  time  for  withdrawing  it.  During 
the  reign  of  martial  law  he  might  think  that  the  public 
safety — or  his  own  subsequently — required  the  abolition  of 
the  old  system  and  the  installation  of  himself  as  a  king  or 
a  permanent  dictator.  In  that  event  his  work  could  be  un 
done  only  by  a  counter  revolution.  In  practice  the  com 
mander  usually  is  guided  by  motives  based  on  the  highest 
patriotism,  but  a  bad  man  might  be  restrained  only  by 
fear,  or  by  the  extent  of  the  obedience  he  could  command  in 
his  army. 

Such  are  the  distinctions  between  military  government 
and  martial  law  on  domestic  territory.  With  the  latter 
we  shall  not  be  much  concerned  in  this  study,  though  it 
may  be  necessary  to  notice  it  now  and  then. 

1 N.  Y.  World,  Oct.  5,  1865 ;  Appleton's  Ann.  Cyc.  1863,  p.  487  et  seq. 


BOOK  I 

LOUISIANA  AND  FLORIDA  IN  TRANSITION 


CHAPTER  I 
LOUISIANA 

I.  TAKING  POSSESSION 

BY  the  treaty  of  San  Ildefonso,  concluded  October  i, 
1800,  Spain  agreed  to  retrocede  the  province  of  Louisiana, 
which  had  been  given  to  her  by  the  secret  convention  of 
1762,  to  the  French  Republic.  In  1803  Napoleon  agreed, 
in  consideration  O'f  fifteen  million  dollars,  to  cede  the  prov 
ince,  not  yet  in  the  possession  of  France,  to  the  United 
States.  The  treaty  of  cession  was  concluded  April  30,  and 
proclaimed  October  21,  1803.  The  third  article  of  the 
treaty  stipulated  that  the  inhabitants  of  the  ceded  territory 
should  be  incorporated  into  the  Union  and  admitted  as 
soon  as  possible,  according  to  the  principles  of  the  Federal 
Constitution,  to  the  enjoyment  of  all  the  rights,  advantages, 
and  immunities  of  citizens  of  the  United  States;  and  that 
in  the  meantime  they  should  be  maintained  and  protected 
in  the  free  enjoyment  of  their  liberty,  property,  and  the 
religion  which  they  professed.  The  seventh  article  granted, 
for  twelve  years,  to  the  ships  of  France  and  Spain  such 
privileges  as  were  accorded  to  those  of  the  United  States 
in  all  ports  of  Louisiana.  Possession  was  to  be  given  and 
evacuation  effected  as  soon  as  possible.1 

In  his  message  2  transmitting  the  treaty  to  the  Senate, 
President  Jefferson  said :  "  With  the  wisdom  of  Congress 
it  will  rest  to  take  those  measures  which  may  be  necessary 

^Treaties  and  Conventions  (U.  S.),  276  et  seq.  2  October  17, 1803. 

207]  23 


24  MILITARY  GOVERNMENT  [2o8 

for  the  immediate  occupation  and  temporary  government 
of  the  country."  In  response  to  this  suggestion,  a  bill  of 
two  sections  was  passed  and  became  a  law  October  31. 
The  first  section  authorized  the  President  to  employ  the 
army  and  navy,  and  so  much  of  the  militia  as  he  might 
deem  necessary,  to  effect  occupation  and  to  maintain  the 
authority  of  the  United  States  in  the  new  territory.  The 
necessary  funds  were  appropriated,  to  be  applied  under  the 
President's  direction.  The  second  section  read : 

Until  the  expiration  of  the  present  session  of  Congress  or 
unless  provision  be  sooner  made  for  the  temporary  govern 
ment  of  the  said  territories,  all  the  military,  civil  and  judicial 
powers  exercised  by  the  officers  of  the  existing  government 
of  the  same,  shall  be  vested  in  such  person  or  persons,  and 
shall  be  exercised  in  such  manner  as  the  President  of  the 
United  States  shall  direct,  for  maintaining  and  protecting  the 
inhabitants  of  Louisiana  in  the  full  enjoyment  of  their  liberty, 
property  and  religion. 

February  24,  1804,  an  act  was  passed,  to  take  effect  in 
thirty  days,  extending  to  Louisiana  several  laws  of  the 
United  States,  among  them  those  relating  to  revenue  and 
coinage.  March  26,  the  President  approved  an  act  dividing 
the  territory  and  creating  a  territorial  government  for  the 
lower  portion,  to  take  effect  October  i,  1804.  Until  that 
time  the  powers  conferred  in  the  first  act  mentioned  above 
were  to  be  exercised  by  the  Executive.  A  law  provided 
funds  to  meet  the  expenses  of  this  temporary  government. 

Mr.  W.  C.  C.  Claiborne,  then  governor  of  the  Missis 
sippi  Territory,  and  General  Wilkinson,  of  the  army,  were 
commissioned  to  take  possession  of  Louisiana  for  the  United 
States.  As  opposition  was  apprehended,  they  were  author 
ized  to  use  force,  and  the  army  and  militia  were  ordered 
to  be  in  readiness  to  move.  However,  no  opposition  was 


209]  LOUISIANA  25 

encountered,  and  the  formal  transfer  of  sovereignty  was 
effected  at  the  Cabildo,  with  some  attempt  at  eclat,  on 
December  20,  1803.  Our  commissioners  reported  that  the 
American  flag"  was  raised  in  New  Orleans  "  amidst  the 
acclamations  of  the  inhabitants."  x 

The  same  day  Governor  Claiborne  issued  a  proclama 
tion,  reciting  that  the  President  had  commissioned  him  to 
exercise  the  powers  of  government  in  Louisiana  to  the 
extent  and  purpose  for  which  they  were  conferred  in  the 
act  quoted  above.  All  laws  and  municipal  regulations  then 
in  force  would  be  continued;  all  civil  officers,  except  those 
who-se  duties  were  vested  in  him,  and  the  collectors  of  the 
revenue,  would  continue  in  office  during  the  pleasure  of 
the  governor.  The  inhabitants  were  exhorted  to  show  true 
allegiance  to  the  United  States  and  obedience  to  their  laws 
and  authorities,  and  were  assured  of  protection  from  vio 
lence  from  within  and  without.  In  a  separate  address  to 
the  citizens  of  Louisiana  he  promised  them  protection,  and 
exhorted  them  to  seek  political  information,  to  guide  the 
rising  generation  in  the  paths  of  republican  virtue  and 
economy,  without  which  their  descendants  could  not  know 
the  true  worth  of  the  government  transmitted  to  them.2 

II.  SOCIAL  AND  POLITICAL  CONDITION  OF  LOUISIANA 

The  geographical  limits  of  the  Louisiana  Territory  were 
but  vaguely  denned  in  all  the  treaties  of  cession  and  retro 
cession,  but  the  extent  of  the  country  actually  acquired  by 
the  United  States  in  1803,  as  finally  defined  in  the  Spanish 
treaty  of  1819,  is  familiar  to  all  students  of  American  his 
tory,  and  may  be  seen  at  a  glance  by  reference  to  historical 
maps.  As  soon  as  it  was  known  that  the  treaty  of  cession 
had  been  concluded,  Mr.  Jefferson  sought  detailed  infor- 

1  Ann.  8  Cong.,  2  Sess.,  1230.  2  Ibid.,  1232  et  seq. 


26  MILITARY  GOVERNMENT  [2io 

mation  respecting  the  territory.  This  information  had  not 
been  obtained  when  the  act  of  October  31  was  passed,  but 
it  was  secured  before  possession  was  effected. 

The  population  in  1803,  according  to  a  statement  made 
up  from  the  latest  documents  obtainable,  amounted  to  41,- 
275,  of  whom  about  16,000  were  slaves  and  1,303  free 
people  of  color.  The  census  of  New  Orleans  in  1803  gave 
it  a  population  of  8,056.  But  these  figures  were  believed 
to  be  too  low.  The  Spanish  governor  was  fully  persuaded 
that  the  entire  population  of  Louisiana  was  considerably 
in  excess  of  50,000.  Upper  Louisiana,  included  in  the 
above  figures,  with  settlements  from  St.  Louis  to  New 
Madrid,  contained  6,028  souls,  of  whom  883  were  slaves 
and  197  free  negroes.  Figures  for  about  16,000  Indians 
were  given,  but  their  real  number  was  unknown. 

The  white  inhabitants  were  chiefly  descended  from  the 
French  and  Canadians.  There  were  a  few  German  settle 
ments,  and  a  considerable  number  of  English  and  Amer 
icans  resided  at  New  Orleans.  In  the  Baton  Rouge  dis 
trict,  east  of  the  Mississippi  river,  the  Americans  were 
greatly  in  the  majority;  in  Upper  Louisiana  they  were  be 
lieved  to  constitute  at  least  two-fifths  of  the  whole.  There 
were  no  colleges  in  the  country.  New  Orleans  had  one 
public  school,  and  a  few  private  schools  for  children.  Not 
more  than  half  the  [white?]  inhabitants  were  supposed  to 
be  able  to  read  and  write,  of  whom,  perhaps,  not  more  than 
two  hundred  could  do  it  well.  They  were  said  not  to  be 
litigious,  and  crimes  of  great  atrocity  were  rare.  In  re 
ligion  they  were  Catholics. 

The  chief  industry  was  agriculture,  but  some  manufac 
turing  was  carried  on.  The  trade  of  the  country  was  con 
siderable.  Of  two  hundred  and  sixty-eight  vessels  which 
entered  the  Mississippi  in  1802,  one  hundred  and  seventy 
were  American,  ninety-seven  Spanish,  and  only  one  French. 


21 1  ]  LOUISIANA  27 

The  imports  from  the  United  States  had  declined  about 
half  since  1799,  but  the  exports  to  the  United  States  had 
increased  in  the  same  ratio. 

The  province  had  been  so  long  in  the  hands  of  Spain 
that  all  the  French  regulations  had  disappeared,  and  the 
machinery  of  government  had  become  entirely  Spanish,  ad 
ministering  Spanish  laws  and  ordinances  made  expressly 
for  the  colony.  The  French  held  actual  possession  in  1803 
only  about  three  weeks,  and  this  possession  was  taken 
merely  to  effect  the  formal  transfer  to  the  United  States. 
But  in  that  brief  time  the  prefect  issued  several  decrees 
relating  to  the  political  organization.  One  of  these  de 
clared  the  code  given  to  the  province  by  Louis  XV.  to  be 
in  force,  excepting  such  parts  as  were  inconsistent  with 
the  Constitution  and  laws  of  the  United  States.  His 
authority  to  do  this  might  very  reasonably  be  questioned. 
One  change  was  actually  effected  by  the  appointment  of  a 
mayor  and  council  for  New  Orleans.  The  chief  object  of 
these  changes  was  confessed  by  the  French  prefect  to  be 
to  add  some  dignity  and  respectability  to  his  position  by 
a  show  of  authority,  and  so  to  prevent  his  taking  posses 
sion  from  being  a  ridiculous  farce.1 

The  governor  was  at  the  head  O'f  the  military  and  judicial 
departments,  and  was  vested  with  some  legislative  powers. 
He  could  not  levy  new  taxes  without  the  consent  of  the 
inhabitants,  but  how  that  consent  was  secured  is  not  stated. 
Presumably  it  was  through  the  Cabildo,  or  Provincial  Coun 
cil,  over  which  the  governor  presided.  This  body  was  com 
posed  of  twelve  members,  said  to  be  of  the  most  wealthy 
and  respectable,  who  secured  their  offices  by  purchase.  The 
intendant,  who  looked  after  matters  pertaining  to  the  rev 
enue,  admiralty,  and  the  granting  of  land,  was  entirely 

1  Martin,  Hist.  La.,  ii,  197;  Gayarre,  Hist.  La.,  ii,  606  et  seq. 


28  MILITARY  GOVERNMENT  [212 

independent  of  the  governor.  The  lieutenant-governor 
superintended  the  administration  of  Upper  Louisiana,  in 
which  he  was  practically  supreme  in  everything,  except  that 
his  decisions  were  subject  to  appeal.  The  several  districts 
were  placed  in  charge  of  commandants,  generally  military 
men,  who  were  supposed  to  look  after  almost  everything 
of  which  a  government  takes  cognizance.  The  procurer- 
general  had,  among  other  things,  to  indicate  the  punish 
ment  provided  by  law  for  any  particular  crime.  Besides 
these,  there  were  numerous  other  officers  not  necessary  to 
mention,  all  of  whom,  except  those  whose  salaries  were 
less  than  thirty  dollars  per  month,  were  appointed  by  the 
king.  Not  a  single  officer  was  chosen  by  the  people. 

Nearly  every  officer — the  governor,  intendant,  command 
ants,  alcaldes,  and  others — had  some  sort  of  judicial  power. 
In  civil  cases,  small  suits  were  decided  in  a  summary  way 
by  the  auditor  or  judge,  after  hearing  both  parties  in  viva 
voce  testimony.  In  more  important  suits  the  litigants  r&- 
duced  their  testimony  to  writing,  all  of  which  was  taken 
before  the  keeper  of  the  records  of  the  court.  They  then 
had  opportunities  of  making  remarks  upon  the  evidence, 
by  way  of  petition,  and  of  bringing  forward  opposing 
proofs.  When  the  auditor  thought  the  cause  mature  he 
issued  his  decree.  Appeals  were  allowed,  in  some  cases  to 
Havana.  The  proceedings  in  criminal  cases  were  very  sim 
ilar.  Trials  were  not  public,  but  the  accused  had  every 
kind  of  privilege  in  making  his  defense,  the  testimony  being 
written.  Trial  by  jury  was  unknown.  Fees  were  small. 

Such  was  the  judicial  system  in  theory.  In  practice  it 
was  said  to  be  very  corrupt.  Important  suits  were  rendered 
expensive  by  delays.  Appeals  to  Cuba  and  Madrid  were 
slow  and  ruinous.  The  favors  of  the  officials,  from  the 
governor  to  the  constable,  were  subject  to  purchase.1 
1  Gayarre,  ibid.,  584. 


213]  LOUISIANA  29 

The  Catholic  Church  was  a  part  of  the  government.  Its 
officials  also  had  certain  judicial  powers.  Some  of  them 
were  paid  from  the  public  treasury. 

The  expenses  of  the  government,  including  the  pay  and 
support  of  the  troops  garrisoning  the  country,  and  other 
items,  such  as  repair  of  forts  and  public  buildings,  salaries, 
and  Indian  presents,  were  far  in  excess  of  the  revenue.  The 
chief  source  of  income  was  the  six  per  cent,  tariff  on  all  im 
ports  and  exports,  yielding  about  $120,000  annually.  There 
were  a  few  taxes,  for  example,  on  inheritances  and  legacies, 
salaries  of  civil  officials,  saloons,  conveyances  of  real  estate, 
and  there  were  fees  for  pilotage,  but  all  these  did  not  yield 
more  than  five  or  six  thousand  dollars  annually.  Instead  of 
paying  local  taxes,  each  inhabitant  was  bound  to  make  and 
repair  roads,  bridges,  and  embankments  through  his  own 
estate.  A  part  of  the  deficit  was  met  by  the  importation 
of  about  $400,000  in  specie  from  Vera  Cruz,  but  there  was 
still  a  yearly  deficit  of  about  $150,000.  At  the  time  of  the 
transfer  it  had  amounted  to'  $450,000.  To*  meet  this,  cer 
tificates,  called  liberanzas,  were  issued,  bearing  no  interest. 
They  usually  passed  at  a  discount  of  from  twenty-five  to 
fifty  per  cent.  This  deficit,  it  was  declared,  was  largely  due 
to  the  criminal  negligence  of  the  officials,  who  openly  coun 
tenanced  smuggling.  The  income  from  the  six  per  cent, 
duties  alone  should  have  produced  $279,480,  as  the  imports 
and  exports  amounted  to  $4,658,ooo.1 

About  the  best  way  to  characterize  such  a  government 
is  to  say  that  it  was  "  Spanish  colonial."  It  was  spoken 
of  by  some  historians  of  Louisiana  as  more  military  than 
civil. 

1  The  material  for  this  section  has  been  taken  almost  wholly  from 
reports  prepared  for  President  Jefferson  and  submitted  by  him  to  Con 
gress.  They  may  be  found  in  Ann.,  8  Cong.,  2  Sess.,  1498  et  seq.  A  few 
statements  have  been  taken  from  Martin,  Gayarre,  and  from  Stoddard, 
Hist.  Sketches  of  La. 


30  MILITARY  GOVERNMENT  [214 

III.   CONSTITUTIONAL  BASIS  OF  THE  NEW  GOVERNMENT 

When  the  Louisiana  Territory  was  acquired  our  Gov 
ernment  was  in  the  absolute  control  of  the  ultra-constitu 
tional,  or  strict  constructionist  party.  Their  efforts  to  find 
a  constitutional  justification  for  everything  connected  with 
the  transfer  are  interesting,  not  to  say  amusing,  in  view  of 
the  fact  that  they  ultimately  had  to  do  several  things  for 
which  there  was  no  direct  warrant  in  the  Constitution,  but 
which  were  not,  for  that  reason,  necessarily  unconstitu 
tional.  Whether  any  act  really  did  transgress  the  funda 
mental  law  will  come  up  later.  The  situation  seemed  to 
some  of  the  men  who  had  to  deal  with  it  somewhat  anom 
alous,  the  newly  acquired  country  being  considered  neither 
entirely  domestic,  nor  yet  wholly  foreign.  This  was  the 
view  of  Mr.  Jefferson,  who  drafted  an  amendment  begin 
ning  :  "  Louisiana,  as  ceded  by  France  to  the  United  States, 
is  made  a  part  of  the  United  States."  *  However,  the 
domestic  theory  so  far  prevailed  as  to  obviate  the  necessity 
of  an  amendment,  but  some  of  the  measures  adopted  to 
carry  it  out  savored  somewhat  of  the  opposite  theory. 

When  the  act  of  October  31  2  came  up  in  the  House,  Mr. 
Roger  Griswold,  of  Connecticut,  seconded  by  Mr.  Elliott, 
of  Vermont,  moved  to  strike  out  the  second  section.  The 
objection  brought  out  by  these  gentlemen,  and  those  who 
sided  with  them,  was  that  the  bill  proposed  to  confer  on 
the  President  all  the  powers,  military,  civil,  and  judicial, 
then  exercised  by  the  existing  government  in  Louisiana. 
Just  what  those  powers  were  nobody  knew,  but  they  cer 
tainly  were  legislative,  executive,  and  judicial.  The  union 
of  the  three  departments  of  government  in  one  man  was 
repugnant  to  the  Constitution.  Nor  could  the  legislature 
delegate  its  powers  of  legislation  to  the  President.  Even 

1  Writings  (Ford),  viii,  241.     See  also  p.  262.  2  Supra,  p.  24. 


215]  LOUISIANA  3! 

if  allowable,  such  a  delegation  of  powers  was  bad  policy. 
While  it  was  not  apprehended  that  the  President  would 
abuse  them,  it  would  be  possible  for  him,  under  cover  of 
this  authority,  to  establish  the  whole  code  of  Spanish  laws, 
however  repugnant  to  our  own,  and  become  practically  a 
despot.  If  such  a  despotism  was  necessary,  as  some  argued, 
let  the  military  power  be  exercised  by  the  President  as 
commander-in-chief  of  the  army.1 

Those  favoring  the  bill  argued  that  the  extent  of  powers 
proposed  to  be  conferred  arose  from  necessity,  it  being 
feared  that  turbulent  spirits  might  resist  the  transfer  of 
sovereignty.  Such  a  delegation  was  objectionable  on  gen 
eral  principles,  though  not  unconstitutional,  but  this  was 
an  exceptional  case,  and  the  powers  were  not  to  be  parted 
with  for  a  long  time.  Had  we  acquired  the  territory  by 
war,  would  any  one  say  that  we  could  not  have  driven  out 
the  Spanish  government  and  appointed  officers  to  admin 
ister  the  laws  ?  When  a  territory  was  ceded  its  inhabitants 
had,  according  to  the  law  of  nations,  a  right  to  all  the 
existing  laws  until  they  were  amended  by  the  new  sov 
ereignty.  The  entire  government  of  Spain  would  cease  the 
moment  we  took  possession.  Should  the  people  be  aban 
doned  to  anarchy?  * 

This  argument  from  expediency  and  necessity  could  be 
supported  by  appeal  to  precedent.  So  far  as  the  act  dele 
gated  and  united  powers,  it  followed  the  Ordinance  of 
1787.  There  was  in  this  no  delegation  or  union  of  the 
powers  of  the  general  government.  Indeed,  no  executive 
or  judicial  powers  appear  to  belong  to  Congress  as  a 
national  legislature,  consequently  it  had  none  to  delegate. 
The  delegation  and  union,  then,  was  the  act  of  Con 
gress  as  a  sovereign, — a  constitutional  sovereign,  it  is  true, 

1  Ann.,  8   Cong.,   i    Sess.,  499  et  seq. 


32  MILITARY  GOVERNMENT  [2l6 

but  a  sovereign  in  whom  inhered  all  the  powers  of  gov 
ernment  so  far  as  they  related  to  territory,  in  virtue 
of  being  empowered  to  make  all  needful  rules  and  regula 
tions  for  the  same,  and  a  sovereign  who  might  even  govern 
directly. 

It  has  already  been  stated  that  the  powers  of  govern 
ment  were  vested  in  the  President.  They  were  drawn  from 
two  sources.  Since  he  was  authorized  to  use  the  army  and 
navy  in  effecting  and  maintaining  possession,  he  could,  in 
case  of  necessity,  have  governed  as  a  military  commander. 
The  other  source  was  found  in  the  powers  exercised  by  the 
existing  government,  which  were  conferred  on  the  Presi 
dent.  Mr.  Jefferson's  opinion  of  these  powers  may  be  gath 
ered  from  some  of  his  letters  and  official  acts.  The  first 
quotation  is  from  a  letter  to  Albert  Gallatin,  Secretary  of 
the  Treasury,  dated  November  9,  1803.  After  enumerating 
several  things  for  which  Congress  should  make  provision, 
such  as  the  administration  of  justice,  the  naturalization  of 
ships  and  the  prohibition  of  the  importation  of  slaves  from 
abroad,  he  continues : 

Without  looking  at  the  old  territorial  ordinance,  I  had 
imagined  it  best  to  found  a  government  for  the  territory  or 
territories  of  lower  Louisiana  on  that  basis.  But  on  examin 
ing  it,  I  find  that  it  will  not  do  at  all ;  that  it  would  turn  all 
their  laws  topsy  turvy.  Still  I  believe  it  best  to  appoint  a 
governor  and  three  judges,  with  legislative  powers;  only  pro 
viding  that  the  judges  shall  form  the  laws,  and  the  governor 
have  a  negative  only,  subject  further  to  the  negative  of  a 
national  legislature.  The  existing  laws  of  the  country  being 
now  in  force,  the  new  legislature  will  of  course  introduce  the 
trial  by  jury  in  criminal  cases,  first;  the  habeas  corpus,  the  free 
dom  of  the  press,  freedom  of  religion  &c.,  as  soon  as  can  be, 
and  in  general  draw  their  laws  and  organization  to  the  mould 
of  ours  by  degrees  as  they  find  practicable  without  exciting 


217]  LOUISIANA  33 

too  much  discontent.  In  proportion  as  we  find  the  people 
there  riper  for  receiving  these  first  principles  of  freedom,  Con 
gress  may  from  session  to  session  confirm  their  enjoyment 
of  them.1 

To  Mr.  Madison,  Secretary  of  State,  under  date  of  July 
14,  1804: 

The  third  article  provides  that  they  shall  continue  under  the 
protection  of  the  treaty,  until  the  principles  of  our  constitution 
can  be  extended  to  them,  when  the  protection  of  the  treaty  is 
to  cease,  and  that  of  our  own  principles  to  take  it's  place.  But 
as  this  could  not  be  done  at  once,  it  has  been  provided  to  be 
as  soon  as  our  rules  will  admit.  Accordingly  Congress  has 
begun  by  extending  about  20  particular  laws  by  their  titles, 
to  Louisiana.2 

October  31,  1803,  Secretary  Gallatin  wrote  to  W.  C.  C. 
Claiborne,  who  was  that  day  commissioned  governor  of 
Louisiana : 

It  is  understood  that  the  existing  duties  on  imports  and 
exports,  which  by  the  Spanish  laws  are  now  levied  within 
the  province,  will  continue  until  Congress  shall  have  other 
wise  provided.8 

November  14,  he  issued  instructions  to  H.  R.  Trist,  col 
lector  at  Fort  Adams,  and  designated  collector  at  the  port 
of  New  Orleans,  to  execute  the  Spanish  customs  laws, 
mentioning  specifically  export  duties,  and  the  collection  of 
duties  to  and  from  the  Mississippi  district  and  New  Orleans,4 

i  Writings  of  Jefferson   (Ford),  viii,  275.  2  Ibid.,  313. 

«  Writings  of  Gallatin   (Adams),  i,  167. 

4  Book  "  G,"  Jan.  I,  1803  to  Dec.  31,  1808,  Collectors  Small  Ports, 
in  Office  Secretary  of  Treasury.  Quoted  in  Attorney-General  Griggs's 
Brief  (October,  1900),  82. 


34  MILITARY  GOVERNMENT  [218 

In  the  course  of  the  debates  in  Congress  the  maxim  of 
international  law,  that  the  inhabitants  of  ceded  territory  are 
entitled  to  all  the  existing  laws  until  they  are  amended  by 
the  new  sovereignty,  was  quoted  by  one  of  the  speakers. 
He  probably  meant  to  exclude  such  laws  as  are  political  in 
character.  At  a  later  date  the  Supreme  Court  affirmed  that 
the  political  laws  necessarily  changed,  though  the  municipal 
laws  remained. l  Accepting  this  principle,  it  is  hard  to  find 
any  justification  for  the  adoption  of  the  Spanish  customs 
laws. 

The  course  adopted  by  the  Executive  was  indirectly  ap 
proved  by  Congress  in  the  act  of  February  24,  1804,  which 
purported  to  extend  our  revenue  laws  to  the  recently  ac 
quired  territory,  the  same  to  take  effect  in  thirty  days.  The 
logical  inference  is  that,  in  the  opinion  of  Congress,  these 
laws  did  not  apply  to  Louisiana  before  that  date.  That 
they  extended  there  the  moment  the  territory  came  into  our 
possession  does  not  seem  to  have  occurred  to  anybody.  Yet 
there  were  in  the  Senate,  and  voting  with  the  administra 
tion,  Jonathan  Dayton,  Pierce  Butler,  and  Abraham  Bald 
win,  all  of  whom  had  sat  in  the  Constitutional  Convention. 
And  Mr.  Madison,  one  of  the  most  conspicuous  members 
of  that  body,  was  Secretary  of  State. 

The  apparent  reason  why  the  Spanish  revenue  laws  were 
enforced  is  that  they  were  believed  to  remain  operative  until 
altered  by  the  new  sovereignty.  Such  a  view  appears  un 
tenable;  for  those  laws  certainly  were  political  in  character. 
A  new  sovereign  might  possibly  adopt  the  political  laws  of 
the  old,  but  it  is  assumed  that  he  already  has  laws  defining 
his  relation  to  his  subjects,  and  that  these  at  once  operate 
over  new  subjects  when  no  other  stipulation  is  made.  The 
sovereignty  of  the  United  States  had  already  adopted  such 

1  Amer.  Ins.  Co.  vs.   Canter,   I    Peters,  511. 


219]  LOUISIANA  35 

laws,  applicable  to  all  subjects,  and  these  necessarily  applied 
to  the  people  of  Louisiana,  subject  only  to  the  modifica 
tions  to  which  the  sovereignty  had  assented  in  the  treaty 
of  cession.  Not  only  did  the  President  have  no  authority 
to  enforce  the  Spanish  customs  laws,  but  he  was  in  duty 
bound  to  enforce  our  own.  Not  even  necessity  can  be 
appealed  to  in  justification  of  what  was  done.  The  fact 
that  New  Orleans  was  not  within  a  collection  district  did 
not  prevent  the  execution  of  some  revenue  laws,  and  that, 
too,  by  civil  officials;  then  why  not  the  revenue  laws  of 
the  United  States? 

The  seventh  article  of  the  treaty,  granting  special  privi 
leges  to  French  and  Spanish  ships  in  Louisiana  ports  for 
twelve  years,  does  not  appear  to  have  been  extensively 
discussed  at  the  time,  but  a  similar  provision  in  the  treaty 
of  Paris  (1898)  has  been  assailed  as  violating  that  clause 
of  the  Constitution  which  requires  that  duties,  impo-sts,  and 
excises  be  uniform  throughout  the  United  States.  From 
some  diplomatic  correspondence  of  later  years  we  learn  that 
the  constitutionality  of  the  seventh  article  was  considered 
by  the  Senate.  In  a  communication  of  March  29,  1821, 
John  Quincy  Adams  says  to  the  French  minister,  de 
Neuville,  that  whether  Article  VII  was  compatible  with 
the  Constitution  or  with  Article  III  "  might  be,  and  was, 
a  question  to  the  Senate  in  deliberating  upon  the  treaty. 
It  was  a  question  of  construction  upon  a  clause  of  the 
Constitution;  and  that  construction  prevailed  with  which 
the  terms  of  the  treaty  were  reconcilable  to  it  and  to  them 
selves."  At  this  point  the  Secretary  of  State  is  forced  to 
admit  that,  after  the  admission  of  Louisiana  as  a  State  before 
the  end  of  the  twelve  years,  the  continued  observance  of 
Article  VII  was  an  open  violation  of  the  Constitution, 
to  which  objections  might  have  been  raised,  but  adds  that 


36  MILITARY  GOVERNMENT  [22O 

the  States  waived  such  objections  and  admitted  the  inhabi 
tants  of  Louisiana  "  to  all  the  rights  of  American  citizens, 
a  friendly  grant  in  advance  of  that  which,  in  the  lapse  of 
three  short  years,  might  have  been  claimed  as  an  undeniable 
right."  1 

Something  has  already  been  said  concerning  the  char 
acter  of  the  local  government  in  Louisiana  prior  to  the  ac 
quisition  by  the  United  States.  In  the  opinion  of  Laussat, 
the  Spanish  governor  might  have  used  the  words  frequently, 
but  erroneously,  ascribed  to  Louis  XIV.,  "L'etat,  c'est  moi" 
This  was  a  somewhat  exaggerated  view,  but  it  must  be  con 
fessed  that  there  was  much  in  the  political  system  of  Louisi 
ana  not  in  harmony  with  republican  ideals.  Mr.  Jeffer 
son's  opinion  of  the  fitness  of  the  people  of  Louisiana 
for  self-government  was  expressed  in  a  letter  to  De  Witt 
Clinton,  December  2,  1803 :  "Although  it  is  acknowledged 
that  our  new  fellow-citizens  are  as  yet  as  incapable  of 
government  as  children,  yet  some  cannot  bring  themselves 
to  suspend  its  principles  for  a  single  momait."  2  Still  it 
is  hard  to  believe  that  Jefferson  thought  they  could  be 
governed  without  reference  to  the  most  sacred  guarantees 
of  the  Constitution.  But  what  else  were  he  and  his  gov 
ernor-general  and  intendant  now  doing  in  proclaiming  that 
all  their  laws  should  remain  in  force?  How  was  the  cut 
ting  out  of  a  man's  tongue  and  the  confiscation  of  his  prop 
erty  for  reviling  the  name  of  Christ  to  be  harmonized  with 
the  clause  forbidding  the  infliction  of  cruel  or  unusual  pun 
ishment?  or  the  exemption  of  certain  classes  from  certain 
kinds  of  punishment,  with  our  democratic  principle  of 
equality  before  the  law?  It  does  not  appear  that  either 
of  these  particular  provisions  of  the  Spanish  law  was  ever 

1  Amer.  State  Papers,  For.  Rel.,  v,  652. 

2  Writings  (Ford),  viii,  283. 


221  ]  LOUISIANA  ^7 

invoked  under  our  authority,  nor  is  it  probable  that  they 
would  have  been  enforced.  Still  they  were  a  part  of  the 
laws  declared  to  be  in  force.  Again,  the  Catholic  religion  was 
the  state  religion  in  Louisiana,  no  other  being  tolerated  in 
public.  It  was  supported  in  part  by  the  public  treasury. 
Yet  the  first  amendment  to  the  Constitution  says  that  "  Con 
gress  shall  make  no  law  respecting  an  establishment  of  re 
ligion,  or  prohibiting  the  free  exercise  thereof."  Surely 
Congress  cannot  delegate  powers  prohibited  to  it.  But  the 
adoption  of  the  Spanish  law  certainly  meant  the  establish 
ment  of  the  Catholic  religion  to  the  exclusion  of  others. 
The  stipulation  of  the  treaty  that  the  inhabitants  should  be 
protected  in  the  enjoyment  of  their  religion  did  not  mean 
that  the  Catholic  religion  must  be  supported  by  the  state, 
and  had  it  meant  this  it  could  not  rise  superior  to  our 
fundamental  law. 

Halleck  makes  an  excellent  comment  regarding  what 
municipal  laws  remain  in  force  upon  the  completion  of 
conquest  and  the  transfer  of  sovereignty: 

When  it  is  said  that  ....  the  law  municipal  continues  till 
changed  by  the  will  of  the  conqueror,  it  is  not  meant  that 
these  laws,  proprio  vigore,  remain  in  force,  but  that,  it  is  pre 
sumed,  the  new  political  sovereign,  has  adopted  and  continued 

them  as  a  matter  of  convenience When,  therefore,  we 

come  to  pronounce  upon  the  force  of  a  law  of  the  conquered 
people  after  the  conquest,  and  to  determine  whether  it  has 
been  tacitly  adopted  by  the  conqueror,  we  must  look  to  the 
character  of  its  provisions,  and  compare  them  with  the  laws 
and  institutions  of  the  conquering  state,  that  is,  the  will  of 
the  conqueror  as  expressed  by  himself  in  similar  matters. 
Whatever  is  in  conflict  with,  or  directly  opposed  to,  such  ex 
pressions  of  his  will,  we  cannot  presume  to  have  been  adopted 
by  his  tacit  consent.  Hence,  Lord  Coke  says,  if  a  Christian 


38  MILITARY  GOVERNMENT  [222 

king  should  conquer  an  infidel  country,  the  laws  of  the  con 
quered  country,  ipso  facto,  cease,  because  it  is  not  presumed 
that  a  Christian  king  has  adopted  the  laws  of  an  infidel  race.1 

Of  course  the  principle  just  enunciated  applies  to  terri 
tory  acquired  by  peaceable  cession  as  well.  It  will  be 
noticed  that  Halleck  spoke  of  tacit  adoption.  Perhaps  we 
might  say  that  the  same  principle  would  apply  to  adoption 
by  actual  proclamation,  it  being  assumed  even  in  this  that 
the  new  sovereign  does  not  mean  to  adopt  laws  and  cus 
toms  at  variance  with  such  as  are  already  in  force.  This 
certainly  would  be  a  liberal  interpretation;  but  Mr.  Jeffer 
son's  course  in  Louisiana  cannot  be  defended  even  on  this 
interpretation,  for  we  find  him  speaking  of  introducing,  "  as 
soon  as  can  be,"  2  the  habeas  corpus,  freedom  of  the  press, 
and  freedom  of  religion,  all  of  which  are  guaranteed  by  our 
Constitution. 

IV.     THE  WORK  OF  ADMINISTRATION  AND  ITS  EFFECTS. 

The  French  and  Spanish  in  Louisiana  did  not  take 
"  French  leave  "  after  the  delivery  of  the  territory  to  Gov 
ernor  Claiborne,  a  fact  which  caused  some  annoyance  and 
uneasiness  to  the  Americans.  So  early  as  February  20, 
1804,  Secretary  Madison  wrote  to  the  governor  that  it 
would  be  well  to  get  Morales,  the  former  Spanish  intendant, 
out  of  Louisiana  in  a  discreet  way.  Laussat  embarked  April 
21,  1804,  and  the  Spanish  commissioners  made  their  adieus 
three  days  later.  About  three  hundred  Spanish  troops  had 
been  sent  to  Pensacola  a  few  weeks  before  this,  up  to  which 
time  the  American  troops  had  to  make  out  as  best  they  could 

1  Int.  Law,  ii,  488 ;  cf.  Chicago,  Rock  Island  &  Pacific  Ry.  vs.  Mc- 
Glinn,  114  U.  S.f  542-546. 

2  Supra,  32. 


223]  LOUISIANA  39 

in  the  redoubts  surrounding  the  town  and  under  their  tents.1 
But  other  prominent  Spaniards  still  lingered.  Spain  had 
been  very  reluctant  to  see  the  province  pass  into  the  hands 
of  the  United  States,  and  it  was  commonly  believed,  with 
apparently  good  reason,  that  these  delays  were  occasioned  by 
the  hope  of  profiting  by  disaffection  in  Louisiana,  or  by  some 
turn  in  the  political  wheel  of  fortune.  It  was  not  until 
July  9  that  the  powder  magazine  opposite  New  Orleans  was 
delivered.  In  the  Natchitoches  district  the  operations  of 
the  Spanish  emissaries  were  particularly  offensive.2  Fin 
ally  (August  28),  Secretary  Madison  authorized  Governor 
Claiborne  to  say  that  their  prolonged  stay  had  not  met  with 
approbation,  and  suggested  October  i  as  a  suitable  day 
for  letting  it  be  known.3  October  9  the  governor  in 
formed  Don  Casa  Calvo,  the  leader  of  the  Spanish,  of  the 
secretary's  desires. 

Regarding  the  internal  administration  of  Louisiana  up 
to  the  organization  of  the  territorial  government  under  the 
act  of  Congress,  there  is  not  much  to  be  said.  The  first  step 
taken  (December  30)  related  to  the  organization  of  the 
judiciary,  in  which  Governor  Claiborne  exercised  his  legis 
lative  powers  by  creating  a  court  of  pleas,  composed  of 
seven  justices,  with  certain  defined  collective  and  individual 
jurisdictions  in  both  civil  and  criminal  cases.4  Another  act 
of  some  consequence  was  the  effort  to*  establish  the  Louisi 
ana  Bank  to  meet  the  demand  for  a  circulating  medium. 
Still  another  was  his  effort  to  organize  the  militia.5 

In  January,  1804,  a  contingency  arose  for  which  the 
governor  had  received  no  instructions  and  for  which  he 

1  Madison's   Works   (1884),  ii,   199. 

2  Amer.  State  Pap.,  For.  Rel.,  ii,  689  et  seq. 
«  Works  (1884),  ii,  203. 

4  Martin,  Hist.  La.,  ii,  238.  5  Gayarre,  iv,  15  et  seq. 


40  MILITARY  GOVERNMENT  [224 

had  made  no  provisions.  It  was  nothing  less  than  the 
arrival  of  a  slaver  at  New  Orleans  with  some  fifty  negroes 
for  sale.  Turning  to  the  late  Spanish  contadore,  Mr.  Leon 
ard,  he  learned  that  such  importations  had  been  allowed  by 
Spanish  law  and  custom  since  1793,  whereupon  he  left  the 
importer  to  pursue  his  own  course.1 

According  to  some  accounts  there  was  no  little  discon 
tent  among  the  people  over  their  new  situation.  The  reader 
will  recall  that  our  commissioners  said  the  American  flag 
was  raised  "  amid  the  acclamations  of  the  inhabitants." 
Martin  tells  us  that  "  a  group  of  citizens  of  the  United 
States,  who  stood  on  a  corner  of  the  square,  waved  their 
hats  in  token  of  respect  for  their  country's  flag,  and  a  few 
of  them  greeted  it  with  their  voices.  No  emotion  was  man 
ifested  by  any  other  part  of  the  crowd."  After  the  trans 
fer  there  were  some  open  expressions  of  discontent. 

The  general  causes  of  discontent  were  said  by  Laussat 
to  be  "  the  sudden  introduction  of  the  English  language, 
which  hardly  anybody  understands,  into  the  daily  exercise 
of  public  authority  and  in  the  most  important  acts  of  private 
life;  the  affrays  and  tumults  resulting  from  the  struggle 
for  pre-eminence,  and  the  preference  shown  for  American 
over  French  dances  at  public  balls;  the  invasion  of  bayonets 
into  the  halls  of  amusement  and  the  closing  of  halls;  the 
active  participation  of  the  American  general  and  governor 
in  those  quarrels;  the  revolting  partiality  exhibited  in  favor 
of  Americans  or  Englishmen,  both  in  the  audiences  granted 
by  the  authorities  and  in  the  judgments  rendered ;  the  marked 
substitution  of  American  for  Creole  majorities  in  all  ad 
ministrative  and  judicial  bodies;  the  arbitrary  mixture  of 
old  usages  with  new  ones,  under  pretext  of  change  of  domi 
nation;  the  intemperate  speeches;  the  scandalous  orgies; 

1  Amer.  State  Papers,  Misc.,  i,  390.  2  Hist.  La.,  ii,  199. 


225]  LOUISIANA  4I 

the  savage  manners  and  habits;  the  wretched  appointments 
to  office — what  more  shall  I  say,  Citizen  Minister?"  1 

More  specifically,  it  appears  that  some  American  patrols 
were  guilty  of  insolence  toward  some  of  the  inhabitants.2 
The  native  militia  had  dissolved.  The  governor's  efforts 
to  encourage  its  maintenance  by  enrolling  Americans  were 
only  looked  upon  with  suspicion.  His  plan  to'  relieve  the 
financial  stringency  by  an  institution  entirely  unknown  to 
the  people,  a  bank,  only  aroused  their  fears  of  more  assig- 
nats  and  liberanzas.  The  official  use  of  the  English  lan 
guage,  of  which  suitors  were  ignorant,  was  particularly 
annoying.  The  judges  were  almost  wholly  ignorant  of  the 
Spanish  laws.  In  former  times  appeals  lay  to  Cuba  and 
even  to  Madrid.  But  now,  said  the  plaintiffs,  their  gov 
ernor,  who  was  not  even  attended,  as  the  Spanish  governors 
were,  by  a  legal  adviser,  was  their  court  of  last  resort;  and 
the  errors  into  which  he  could  not  help  falling  were  with 
out  redress.3 

These  causes  of  discontent  finally  found  expression  in 
a  French  pamphlet,  "  A  Sketch  of  the  Political  and  Civil 
Situation  of  Louisiana,  November  30,  1803,  to  October  i, 
1804,"  which  had  a  wide  circulation.  Yet  this  paper,  though 
it  attacked  unsparingly  the  administration  of  affairs  in 
Louisiana,  spoke  respectfully  of  Governor  Claiborne's  in 
tegrity  and  the  purity  of  his  motives.  In  a  letter  to  Secre 
tary  Madison,  the  governor  tried  to  vindicate  himself,  and 
denied  in  to  to  many  of  the  charges  brought  against  him, 
both  in  this  pamphlet  and  in  Laussat's  letter,  though  he  knew 
nothing  of  the  latter.4 

1  Gayarre,  iv,  10. 

2  Marbois,  Hist,  de  la  Louisiane,  360 ;  Eng.  trans.,  335. 

3  Martin,  Hist.  La.,  ii,  246. 

4  Amer.  State  Papers,  Misc.,  i,  399 ;  Gayarre,  iv,  24  et  scq. 


42  MILITARY  GOVERNMENT  [226 

But  the  chief  source  of  discontent  seems  to  have  been 
the  form  of  government  proposed  to  be  put  into  operation 
by  the  act  of  Congress,  October  i,  1804.  According  to 
Laussat,  the  excitement  became  intense  when  the  contents 
of  this  act  became  known  at  New  Orleans.  Placards  were 
put  up  in  which  insurrection  was  openly  preached,  and  pub 
lic  officers  were  driven  away  when  they  attempted  to  tear 
them  down.1  Several  public  meetings  were  held  to  protest 
against  the  act,  and  a  deputation  was  sent  to  Washington 
to  present  their  grievances. 

And  this  reveals  much  concerning  the  causes  of  general 
irritation.  The  people  of  Louisiana  had  supposed  that  they 
were  to  be  given  at  once  all  the  blessings  of  liberty  and 
self-government,  whatever  they  were,  of  which  the  Spanish 
had  kept  them  in  utter  ignorance.  Had  no  such  promise 
ever  been  made,  and  had  the  province  been  ruled  with  an 
iron  hand,  it  is  not  at  all  improbable  that  the  open  expres 
sions  of  discontent  would  have  been  fewer,  especially  at 
first.  Yet  these  people  were  exercising  one  of  the  very 
fundamentals  of  freedom,  the  right  of  petition  and  free 
speech.  Mr.  Jefferson  had  spoken  of  the  freedom  of  the 
press  as  though  it  was  not  to  be  guaranteed  at  first,  but 
Governor  Claiborne  does  not  seem  to  have  interfered  with 
this,  although  it  added  somewhat  to  his  embarrassments.2 
The  situation  of  the  country  demanded  that  it  be  American 
ized,  consequently  a  change  of  language  was  inevitable; 
but  it  could  have  been  accomplished  with  less  friction  had 
men  been  sent  who  were  familiar  with  Spanish  and 
French.  Perhaps  the  Americans  were  numerous  enough  to 
justify  the  bestowal  of  office  upon  some  of  them,  but  it 
must  have  been  trying  to  the  natives  to  be  ruled  by  these 
gentlemen  according  to  American  notions  of  right  and 

1  Gayarre,  iv,  n,  17.  2  Ibid.,  26. 


227]  LOUISIANA  43 

wrong,  supported  by  occasional  bits  of  American  law,  rather 
than  under  the  familiar  Spanish  laws,  as  the  governor  had 
promised  them. 

The  aspersions  cast  upon  Governor  Claiborne  by  Laus- 
sat  do  not  appear  well  founded.  About  the  most  serious 
charge  that  can  be  brought  against  him  is  his  ignorance  of 
French  and  Spanish.  This,  it  must  be  confessed,  was  a 
serious  one  in  the  position  he  occupied.  But  his  subse 
quent  career,  continuously  governor  of  the  Territory,  first 
governor  under  the  State  constitution,  and  elected  to  the 
United  States  Senate,  is  a  high  testimonial  to  his  character 
and  to  the  esteem  in  which  he  was  finally  held  by  the  people 
he  had  been  sent  to  train  in  the  first  steps  of  liberty.  After 
all  has  been  said,  it  does  not  appear  that  the  causes  of  dis 
content  were  much  more  than  suc^  as  are  naturally  incident 
to  a  transfer  of  sovereignty,  especially  where  great  expec 
tations  have  been  raised  which  cannot  be  suddenly  realized. 

Very  little  remains  to  be  said  respecting  the  administra 
tion  of  Upper  Louisiana,  that  vast  domain  where  society 
was  then  in  the  primitive  state  which  characterizes  the  out 
posts  of  civilization. 

It  was  not  until  January  16,  1804,  that  the  French  and 
Spanish  commissioners  gave  orders  for  the  delivery  of  the 
posts  in  Upper  Louisiana.1  Captain  Amos  Stoddard  was 
detailed  to  receive  them.  There  cannot  have  been  much  for 
him  to  do  in  the  way  of  administration.  June  16,  1804, 
he  forwarded  to  President  Jefferson  some  documents  re 
lating  to  the  inhabitants  and  the  resources  of  the  coun 
try.2  Instead  of  manifesting  displeasure  at  the  pres 
ence  of  troops,  the  people  protested  on  learning  that 

1  Amer.  State  Papers,  For.  Rel.,  ii,  690. 
*  Messages  and  Reports,  1804. 


44  MILITARY  GOVERNMENT  [228 

some  of  the  few  soldiers  then  among  them  were  to  be 
withdrawn.1  The  troops  were  wanted  for  protection 
against  the  Indians.  However,  the  soldiers  were  not  so 
well  pleased,  finding  it  difficult  to  live  on  their  small  pay 
where  prices  were  so  high.  November  8,  1805,  a  memorial 
was  sent  to  Congress  praying  for  increased  pay  on  this 
ground. 

The  act  of  March  26,  1804,  which  divided  the  Louisiana 
country,  consigned  the  people  of  the  upper  portion  to  the 
executive  and  judicial  authority  of  the  governor  of  the 
Indiana  Territory.  The  people  were  so  dissatisfied  with 
the  prospects  of  this  quasi-ioreign  bondage  that  they  chose 
delegates  to  a  convention  to  protest  against  it.  This  body, 
composed  of  sixteen  members  from  five  settlements,  met 
at  St.  Louis  on  September.  13,  1804,  formulated  their  griev 
ances,  and  selected  two  delegates,  Augustus  Chonteau  and 
Eligius  Fromentin,  to  present  them  to  Congress.  Captain 
Stoddard  attested  the  genuineness  of  their  credentials,  which 
were  signed  by  the  president  and  secretary  of  the  conven 
tion.2  March  3,  1805,  an  act  was  approved  creating 
a  territorial  government  of  the  first  grade.  General  Wil 
kinson,  still  an  officer  of  the  army,  was  appointed  governor. 
His  position  was  sometimes  spoken  of  as  that  of  military 
governor,3  but  the  mere  fact  of  his  being  a  military  man 
hardly  justifies  the  application  of  the  term  to  an  office  not 
so  regarded  when  held  by  a  civilian. 

1  Amer.  State  Papers,  Misc.,  i,  403.  2  Ibid.,  400  et  seq. 

3  Claiborne,  Miss,  as  a  Province,  etc.,  246 ;   Schouler,  Hist.   U.  S., 
iii,  82. 


CHAPTER  II 

THE  ANNEXATION  OF  WEST  FLORIDA 

I.  How  THE  CONQUEST  WAS  EFFECTED 

THE  story  of  the  acquisition  of  the  Floridas  is  almost 
continuous  with  that  of  Louisiana.  Even  before  the  ratifi 
cation  of  the  Louisiana  treaty,  the  Americans  began  to  cast 
longing  eyes  upon  West  Florida,  and  to  wonder  if  it  could 
not  be  included  in  the  cession.  In  fact,  as  soon  as  the  treaty 
was  signed  the  American  negotiators  began  to  lay  claim  to 
this  territory.  Congress,  by  the  act  of  February  24,  1804, 
authorized  the  President  to  erect  the  Mobile  country,  as 
far  west  as  the  Pascagoula,  into  a  separate  collection  dis 
trict,  although  possession  had  not  then  been  obtained.  No 
boundary  was  designated  toward  the  east.  When  this  act 
was  published  it  aroused  the  wrath  of  the  Spanish  minister, 
Yrujo,  who  went  to  the  State  Department  and  commented 
upon  it  in  tones  which  clearly  revealed  his  anger.  As  an 
effort  was  being  made  to  conciliate  Spain  and  win  the  sup 
port  of  France  to  our  claims,  Mr.  Madison  gave  him  such 
assurances  as  were  consistent  with  the  expression  of  a  claim 
as  far  as  the  Perdido.1  May  20,  1804,  President  Jefferson 
issued  a  proclamation  creating  the  district,  but  defined  it 
in  rather  vague  terms  as  the  "  shores  lying  within  the 
boundaries  of  the  United  States."  Fort  Stoddard,  which 
was  on  the  Mobile  river  above  the  thirty-first  parallel,  was 

1  Amer.  State  Papers,  For.  Rel.,  ii,  576. 
229]  45 


46  MILITARY  GOVERNMENT  [230 

made  the  port  of  entry.  But  the  Spaniards  retained  pos 
session  of  Mobile,  where  their  customs  regulations,  partic 
ularly  the  collection  of  duties  on  goods  passing  the  town 
to  and  from  different  parts  of  the  United  States,  continued 
for  several  years  to  be  a  source  of  no  little  annoyance  to 
the  Americans. 

The  authority  and  power  of  Spain  in  West  Florida  were 
now  very  weak,  but  she  succeeded  in  putting  down  an  in 
surrection  in  1804,  when  the  inhabitants  of  the  West  and 
East  Feliciana  and  East  Baton  Rouge  parishes,  who  were 
largely  of  English  and  American  origin,  rose  in  the  hope 
of  securing  American  intervention.1  A  later  attempt  was 
more  successful.  The  insurgents,  or  "  patriots,"  led  by 
Captains  Thomas  and  Depassau,  and  Reuben  Kemper,  who 
lived  on  the  American  side,  marched  against  the  fort  at 
Baton  Rouge,  which  was  garrisoned  by  about  thirty  sol 
diers,  and  captured  it  at  the  first  assault.2 

This  act  was  soon  followed  by  a  convention,  September 
26,  1810,  which  proceeded  to  act  for  the  people  in  a  sover 
eign  capacity.  They  recited  a  number  of  grievances  in  a  gen 
eral  way,  and  declared  that  they  were  without  hope  of 
protection  from  the  mother  country.  Appealing  to  the 
Supreme  Ruler  for  the  rectitude  of  their  intentions,  they 
then  declared  the  several  districts  composing  West  Florida 
to  be  a  free  and  independent  state,  with  all  the  powers  of 
a  sovereign  nation.  An  official  copy  of  this  declaration 
was  ordered  to  be  forwarded  to  Governor  Holmes,  of  the 
Mississippi  Territory,  to  be  by  him  forwarded  to  the  Presi 
dent  of  the  United  States,  with  the  hope  that  it  might 
"  accord  with  the  policy  of  the  Government  to  take  this 
State  under  their  immediate  and  special  protection,  as  an 
integral  and  inalienable  portion  of  the  United  States."  In 

1  Gayarre,  iv,  18.  2  Claiborne,  Miss,  as  a  Prov.,  304. 


231]  THE  ANNEXATION  OF  WEST  FLORIDA  47 

a  separate  letter  addressed,  under  authority  of  the  con 
vention,  by  John  Rhea,  its  president,  to  Mr.  Robert  Smith, 
Secretary  of  State,  it  was  presumed  that  the  claims  of  the 
State  to  the  unlocated  lands  would  not  be  contested  by  the 
United  States,  as  they  had  tacitly  acquiesced  in  the  claims 
of  France  and  Spain  for  seven  years.  A  loan  of  one  hun 
dred  thousand  dollars  was  solicited  from  the  Government, 
to  be  repaid  by  the  sale  of  these  lands.1 

The  convention  seems  to  have  been  confined  to  the  Baton 
Rouge  district,  but  it  assumed  to  speak  for  the  other  par 
ishes,  and  proceeded  to  subdue  them.  Colonel  Kemper  was 
sent  to  the  Tombigbee  settlement,  in  the  United  States,  to 
recruit  a  force  and  move  against  Mobile.  Receiving  much 
encouragement  from  the  Americans,  he  called  upon  the 
Spanish  commandant  to  surrender  Mobile.  While  waiting 
near  the  city  his  men  became  intoxicated,  fell  into  confusion, 
and  were  killed  or  captured  by  a  squad  of  Spanish  troops. 
Colonel  Kemper  escaped.  He  and  some  of  his  followers 
were  afterwards  arrested  by  Judge  Toulmin,  of  Mississippi, 
for  waging  war  against  the  subjects  of  a  nation  at  peace  with 
the  United  States.  However,  the  historian  Claiborne  assures 
us  that  this  proceeding  of  the  judge  met  with  no>  approbation 
in  high  quarters.  Indirectly  the  government  applied  for  the 
pardon  of  the  men  who  were  captured.2 

The  appeal  of  the  Baton  Rouge  convention  to  Washington 
for  assistance  received  no  direct  answer.  October  27, 
President  Madison  issued  a  proclamation  reciting  the 
claims  of  the  United  States  to  West  Florida,  and  giving 
the  reasons  for  not  taking  possession  of  it  sooner.  Now 
the  condition  of  affairs  there,  which  threatened  the  security 
and  tranquility  of  our  adjoining  territory  and  afforded 
new  facilities  to  violators  of  our  revenue  laws  and  of 

1  Ann.,  ii  Cong.,  3  Sess.,  1252  et  seq.          2  Miss,  as  a  Prov.,  308. 


4g  MILITARY  GOVERNMENT  [232 

those  forbidding  the  importation  of  slaves,  made  it  impera 
tive  for  the  United  States  to  occupy  the  country.  The  final 
status  of  the  country  was  still  to  be  a  subject  of  fair  and 
friendly  negotiations.  In  view  of  these  facts,  Governor 
Claiborne  would  proceed  to  exercise  over  the  said  territory 
the  functions  legally  appertaining  to  his  office  as  Governor 
of  the  Orleans  Territory.  The  good  people  were  invited 
to  pay  due  respect  to  him  and  to  obey  the  laws,  and  were 
promised  protection  in  liberty,  property,  and  religion. 

The  same  day  Secretary  Smith  transmitted  this  procla 
mation   to   Governor   Claiborne,    with   orders   to   print   it 
in  English,   Spanish,  and  French,  and  circulate  it  exten 
sively.     "  The  Secretary  of  War,"  said  he,  "  will  order  the 
officers  of  the  frontier  posts  to  assist  you  in  passing  the 
wilderness.    You  will  lose  no  time  in  organizing  the  militia 
of  the  district,  bounding  parishes,  and  establishing  parish 
courts.     Do  all  your  powers  allow  to  maintain  order  and 
protect  the  inhabitants.     The  Legislature  of  Orleans  may 
enlarge  your  powers  and  give  the  district  representation  in 
the  general  assembly.     Should  you  be  opposed,  the  com 
manding  officer  of  the  regular  troops  on  the  Mississippi  will 
have  orders   from   the   Secretary   of  War   to  afford   the 
requisite  aid  upon  your  requisition.    Do  not  use  force  against 
any  particular  place  which  may  still  be  in  the  hands  of  the 
Spaniards,     You  are  authorized  to  draw  up  to  $20,000."  1 
Governor  Claiborne  was  just  returning  from  a  visit  to 
the  States.    When  he  appeared  at  Baton  Rouge,  December, 
1810,  supported  by  two  companies  of  Mississippi  militia, 
the  convention  government  dissolved.     He  then  hoisted  the 
United  States  flag  and  issued  a  proclamation  incorporating 
the  territory  into  that  of  Orleans.     The  next  step  was  to 
organize  parishes  and  appoint  administrative  officers.     In 

1  Ann.  Cong.,  ibid. 


THE  ANNEXATION  OF  WEST  FLORIDA 


49 


the  latter  work  he  pursued  a  policy  of  conciliation  by  ap 
pointing  John  Rhea,  "  General  "  Thomas,  and  others  who 
had  been  prominent  in  the  convention  and  the  government 
instituted  by  it.  Early  in  January  he  sent  flags,  proclama 
tions,  and  commissions  to>  the  remoter  parishes  of  Biloxi 
and  Pascagoula.  In  the  latter  place  the  bearer,  finding 
none  of  the  inhabitants  able  to  read  or  write,  prevailed  upon 
Captain  George  Farragut,  sailing-master  of  the  navy,  to 
accept  a  commission  as  justice  of  the  peace.1 

In  all  of  these  operations  no  opposition  appears  to  have 
been  encountered  from  the  Spanish  authorities.  Indeed, 
Governor  Folch  wrote,  December  2,  1810,  to  Secretary 
Smith,  to  say  that  he  would  deliver  Mobile  to  the  United 
States  upon  equitable  terms  of  capitulation  if  he  did  not 
receive  aid  from  Havana  during  the  month.  At  the  same 
time  he  asked  that  the  commandant  at  Fort  Stoddard  might 
be  directed  to  assist  him  in  driving  back  Colonel  Kemper, 
whose  movements  have  already  been  mentioned.  No  de 
livery  of  Mobile  appears  to  have  been  made. 

II.  THE  LEGAL  ASPECTS  OF  THE  ANNEXATION 

The  action  of  our  administration  in  West  Florida  did 
not  elicit  so  much  as  a  diplomatic  protest  from  Spain. 
Indeed,  that  unfortunate  country  was  hardly  in  a  position 
to  assert  her  rights,  owing  to  her  own  internal 
disorders  incident  to  the  schemes  of  Napoleon.  But 
the  British  charge  d'affaires,  Mr.  J.  P.  Morier,  entered 
a  protest  in  her  name.  His  letter,  however,  received 
no  reply  until  he  wrote  again  asking  for  one.  Mr. 
Smith  then  merely  referred  to  the  public  documents  to  show 
that  the  act  was  not  hostile  to  Spain,  and  added  that  our 
representative  at  London  had  been  instructed  to  give  the 

1  Claiborne,  Miss,  as  a  Prov.,  305  et  seq. 


50  MILITARY  GOVERNMENT  [234 

necessary  explanations  to  the  British  Government.  July  2, 
1811,  Mr.  Foster,  the  British  minister,  wrote  Mr.  Monroe, 
then  Secretary  of  State,  to  say  that  Mr.  Pinkney  had  offered 
no  explanation,  and  that,  if  the  military  occupation  was 
persevered  in,  he  must  protest  against  it  as  contrary  to  every 
principle  of  public  justice,  faith,  and  national  honor,  and 
injurious  to  the  alliance  subsisting  between  the  British  and 
Spanish  nations.1 

Mr.  Monroe  denied  the  right  of  Great  Britain  to  inter 
fere,  and  proceeded  to  justify  the  seizure.  It  had  not  been 
made,  as  Mr.  Foster  had  intimated,  through  selfish  motives 
at  a  time  when  Spain  was  known  to  be  impotent.  Many 
injuries  suffered  at  the  hands  of  Spain,  spoliations  and  the 
suspension  of  the  right  of  deposit  at  New  Orleans  in  par 
ticular,  would  have  justified  reprisals.  But  the  United 
States  did  not  rely  on  these;  their  claims  were  based  on 
the  treaty  by  which  Louisiana  was  acquired.  Since  1805 
the  government  of  Spain  had  hardly  been  felt  in  West  Flor 
ida,  consequently  that  province  had  fallen  into  disorder. 
Only  when  the  inhabitants  rose  and  took  matters  into  their 
own  hands  did  the  United  States  interfere. 

Though  it  was  now  easy  enough  to  get  up  some  sort  of 
justification  as  against  foreign  protests,  Mr.  Madison  had 
not  been  so  sure  of  his  ground  at  home.  October  19,  1810, 
when  he  knew  something  of  what  was  going  on,  but  had 
not  yet  received  any  "  communication  from  the  successful 
party  at  Baton  Rouge,"  he  wrote  to  Mr.  Jefferson  to  say 
that  the  crisis  in  West  Florida  presented  serious  questions 
as  to  the  adequacy  of  the  laws  of  the  United  States  for 
territorial  administration.  He  feared  that  the  near  approach 
of  Congress  might  subject  any  intermediate  interposition 
of  the  Executive  to  the  charge  of  being  premature  and  dis- 

1  Amer.   State  Papers,   For.   Rel.,  iii,  542. 


235]  THE  ANNEXATION  OF  WEST  FLORIDA  $i 

respectful,  if  not  illegal.  Still  he  thought  the  exigencies 
of  the  case,  the  country  to  the  Perdido  being  ours  and  in 
danger  of  foreign  seizure,  would  justify  him  in  taking  pos 
session.1 

But  his  doubts  about  the  legality  and  propriety  of  occu 
pation  soon  vanished.  What  he  actually  did  has  already  been 
told.  October  30,  he  wrote  to  Pinkney,  our  minister  in  Lon 
don,  that  his  action  was  "  understood  to  be  within  the  author 
ity  of  the  Executive."  2  In  his  annual  message,  December  5, 
he  explained  that  this  action  had  been  taken  because  "  the 
Spanish  authority  was  subverted,  and  a  situation  produced 
exposing  the  country  to  ulterior  events  which  might  essen 
tially  affect  the  rights  and  welfare  of  the  Union.  In  such 
a  conjuncture  I  did  not  delay  the  interposition  required  for 
the  occupancy  of  the  territory  west  o<f  the  Perdido  to  which 
the  title  of  the  United  States  extends,  and  to  which  the  laws 
for  the  Territory  of  Orleans  are  applicable.  .  .  .  The  legal 
ity  and  necessity  of  the  course  pursued  assure  me  of  the 
favorable  light  in  which  it  will  present  itself  to  the  Legis 
lature  and  of  the  promptitude  with  which  they  will  supply 
whatever  provisions  may  be  due  to  the  essential  rights  and 
equitable  interests  of  the  people  thus  brought  into  the  bosom 
of  the  American  family." 

But  the  "  legality  and  necessity  "  of  the  act  were  not 
accepted  in  Congress  without  question.  The  discussion  was 
brought  on  by  a  bill,  reported  December  18,  by  the  special 
Senate  committee  to  which  the  above  portion  of  the  Presi 
dent's  message  was  referred.  This  bill  proposed  to  extend 
the  Territory  of  Orleans  to  the  Perdido  and  to  declare  the 
laws  of  the  Territory  in  force  over  that  region. 

The  opposition,  led  by  Senator  Horsey,  of  Delaware, 
first  denied  any  right  to  the  territory  under  the  Louisiana 

i  Writings,  ii,  484.  *  Ibid.,  488. 


52  MILITARY  GOVERNMENT  ^236 

treaty.  With  this  part  of  the  argument  we  are  not  con 
cerned  here  more  than  to  remark  that  there  was  "  some 
thing  to  be  said  on  both  sides,"  and  that,  while  many  men 
of  that  day  considered  our  claims  well  founded,  they  are 
not  generally  so  regarded  to-day.  Having  decided  that  we 
had  no  claim  to  West  Florida,  Senator  Horsey  declared 
that  the  Executive,  in  issuing  the  proclamation  of  October 
27,  which  the  bill  proposed  to  put  in  the  form  of  a  statute, 
had  exercised  authority  derivable  from  neither  the  Consti 
tution  nor  the  laws  of  the  United  States.  In  ordering  forc 
ible  military  possession  to  be  taken  he  was  making  war; 
in  ordering  the  enforcement  of  the  laws  of  the  Orleans 
Territory  he  was  exercising  legislative  functions.  Both 
these  powers  belonged  to  Congress.  But  even  if  the  coun 
try  was  ours,  no  law  of  Congress  could  be  cited  authorizing 
the  act.  The  act  of  October  31,  1803,  which  empowered 
the  President  to  take  possession  of  the  country  ceded  by 
France,  expired  October  i,  1804.  If  the  act  of  February 
24,  1804,  authorizing  the  Executive  to  create  a  collection 
district  at  Mobile,  "  whenever  he  shall  deem  it  expedient," 
be  cited,  Mr.  Madison  himself,  while  Secretary  of  State, 
had  answered  a  protest  of  the  Spanish  minister  against  this 
law  by  saying  that  its  provisions  would  not  "  be  extended 
beyond  the  acknowledged  limits  of  the  United  States  until 
it  shall  be  rendered  expedient  by  friendly  elucidation  and 
adjustment  with  his  Catholic  Majesty."  The  necessity  and 
expediency  of  the  act  the  senator  rejected  in  to  to. 

Against  this  argument  Senator  Clay,  of  Kentucky,  after 
discussing  our  title  to  the  territory  at  'some  length  and 
satisfying  himself  that  it  was  good,  defended  the  legality 
of  the  President's  course.  The  first  section  of  the  act 
of  October  31,  1803,  authorizing  the  President  to  oc 
cupy  and  hold  the  country  ceded  by  France,  was  un 
limited,  hence  still  in  force.  The  second,  authorizing  the 


237]  THE  ANNEXATION  OF  WEST  FLORIDA  53 

creation  of  a  temporary  government,  expired  by  limitation 
at  the  end  of  the  Congress  which  passed  the  bill.  To  this 
alone  was  the  act  of  March  26,  extending  the  former  till 
October  i,  1804,  applicable.  The  act  of  February  24,  1804, 
made  it  the  duty  of  the  President  to  create  a  collection  dis 
trict  at  Mobile  whenever  he  deemed  it  expedient.  That 
time  had  now  come,  and,  instead  of  usurping  the  war-  and 
law-making  power,  he  would  have  violated  that  clause  of 
the  Constitution  which  required  him  to  see  that  the  laws 
were  faithfully  executed,  had  he  longer  forborne  to  act.  In 
addition  to  this,  when  a  power  allowed  a  colony  adjacent  to 
us  to  fall  into  such  disorder  as  to  menace  our  peace  and 
threaten  the  integrity  of  the  Union,  we  had  a  right,  upon 
the  eternal  principle  of  self-preservation,  to  lay  hold  of 
it.  This  principle  alone  would  warrant  our  occupation  of 
West  Florida.1 

Especially  noteworthy  is  the  absence  of  any  considera 
tion  of  the  people  most  affected  by  this  action.  President 
Madison  did  indeed  say  something  about  their  "  essential 
rights  and  equitable  interests,"  but  just  what  he  meant  is 
not  clear.  Mr.  Rhea's  request,  in  the  letter  mentioned  above, 
for  pardon  for  all  deserters  within  the  territory  was  not 
noticed.  Governor  Holmes  was  directed  to  inform  the 
people  that  their  claims  to  the  public  land  could  not  be 
entertained  for  a  moment.  He  was  further  advised  that 
the  President  could  not  recognize  in  the  convention  of  West 
Florida  any  independent  authority  whatever  to  propose  or 
form  a  compact  with  the  United  States.2 

The  Senate  bill  to  legalize  the  proclamations  never  passed, 
but  the  territory  was  never  surrendered.  A  part  of  it  was 
subsequently,  by  act  of  Congress,  added  to  Louisiana  when 
she  was  admitted  as  a  State. 

1  Ann.,  II  Cong.,  3  Sess.,  25,  46,  55,  62  et  seq.  2  Ibid.,  1259. 


CHAPTER  III 
THE  CONQUEST  OF  FLORIDA 

I.  GRADUAL  ENCROACHMENT  AND  FINAL  SEIZURE 

AFTER  the  events  just  recited  the  eyes,  not  to  say  the 
hands,  of  the  Americans  were  never  taken  off  the  Floridas, 
and  the  march  of  events  leading  to  their  permanent  occu 
pation  was  more  or  less  steady.  When  Governor  Folch's 
letter,  offering  to  surrender  Mobile,  was  received,  President 
Madison  transmitted  it  to  Congress,  January  3,  1811,  and 
recommended  "  to  the  consideration  of  Congress  the  season- 
ableness  of  a  declaration  that  the  United  States  could  not 
see,  without  serious  inquietude,  any  part  of  a  neighboring 
territory,  in  which  they  have  in  different  respects  so  deep 
and  just  a  concern,  pass  from  the  hands  of  Spain  into  those 
of  any  other  foreign  power."  He  further  recommended 
that  the  Executive  be  authorized  "  to  take  temporary  pos 
session  of  any  part  or  parts  of  the  said  territory,  in  pur 
suance  of  arrangements  which  may  be  desired  by  the  Span 
ish  authorities,  and  for  making  provision  for  the  govern 
ment  of  the  same  during  such  possession." 

The  declaration  of  principles  first  quoted  was  embodied 
in  a  resolution  of  Congress,  approved  January  15,  1811. 
The  same  day  an  act  was  approved  authorizing  the  Exec 
utive  to  occupy  and  govern  East  Florida  under  the  con 
ditions  just  named.  This  act  was  passed  in  secret,  and 
was  not  published  until  1818. 

To  carry  out  this  act,  President  Madison  selected  Gen- 
54  [238 


239]  THE  CONQUEST  OF  FLORIDA  55 

eral  George  Matthews  and  Colonel  John  McKee,  and  in 
structed  them  to  occupy  the  country,  if  peaceably  surren 
dered  by  the  Spanish  authorities,  or  if  in  danger  of  being 
seized  by  some  foreign  power.  The  War  Department  would 
issue  orders  to  have  any  necessary  military  assistance  ren 
dered. 

Such  a  commission  necessarily  left  much  to  the  discre 
tion  of  the  holder.  Soon  after  arriving  in  the  neighbor 
hood  of  St.  Mary's,  General  Matthews  found  a  condition 
of  affairs,  possibly  brought  about  in  part  by  his  presence, 
which  seemed  to  him  to  warrant  action.  Amelia  Island,  a 
Spanish  possession  near  the  mouth  of  the  St.  Mary's,  was 
almost  in  a  state  of  anarchy.  Smuggling  was  the  principal 
business.  A  large  party  of  men  crossed  over  from  the  Amer 
ican  side  and  succeeded  in  organizing  a  revolution  in  the 
country  between  St.  Mary's  and  St.  John's,  Some  United 
States  gun-boats,  under  command  of  Commodore  Campbell, 
dropped  down  the  river  in  advance  of  the  insurgents  and 
moored  opposite  Fernandina,  on  Amelia  Island.  When  the 
insurgents,  accompanied  by  some  American  troops,  ap 
peared,  the  Spanish  commandant  surrendered  without  firing 
a  shot.  In  the  capitulation  it  was  stipulated  that  the  island 
should  be  surrendered  to  the  United  States  within  twenty- 
four  hours.  It  was  further  agreed  that  the  port  should  not 
be  subject  to  any  of  the  restrictions  on  commerce  then  ex 
isting  in  the  United  States,  but  should  be  a  free  port  until 
May  i,  1813.  Vessels  owned  by  Spanish  subjects  on  the 
island  were  to  be  entitled  to  regular  American  registers. 
The  proceedings  were  confirmed  by  General  Matthews,  and 
the  American  flag  was  substituted  for  that  of  the  "patriots."1 

President  Madison  disapproved  of  these  proceedings  as 
soon  as  he  heard  O'f  them,  relieved  General  Matthews,  and 

1  Niles's  Register,  ii,  93. 


56  MILITARY  GOVERNMENT  [240 

asked  Governor  Mitchell,  of  Georgia,  to  take  his  place. 
He  was  directed  to  endeavor  to  restore  the  previous  status 
of  affairs,  but  was  not  to  restore  the  island  until  assured 
by  the  Spanish  governor  that  the  "  patriots  "  would  not 
be  subjected  to  his  resentment.1 

But  possession  was  not  immediately  given  to  the  Spanish. 
For  more  than  a  year  the  island  rested  under  the  American 
flag  and  was  subject  to  the  regulations  imposed  by  our 
officers.  May  6,  1813,  Governor  Kinderland  arrived  from 
St.  Augustine  with  a  collector  and  several  civil  officers, 
and  received  peaceable  possession.2 

February  12,  1813,  an  act  was  approved  authorizing  the 
Executive  to  employ  the  army  and  navy  in  occupying  and 
holding  so  much  of  the  country  west  of  the  Perdido  as  was 
not  then  in  the  possession  of  the  United  States,  and  for 
affording  protection  to  the  inhabitants  thereof. 

The  Executive  was  not  slow  to  act  under  this  authority. 
April  15,  1813,  the  Spanish  garrison  at  Mobile  surrendered 
to  General  Wilkinson,  and  were  immediately  shipped  to 
Pensacola  in  public  transports.3  A  proclamation,  dated 
April  13,  was  issued  by  the  general,  assuring  the  people 
that  he  had  come,  by  order  of  the  President,  to  enforce  the 
laws  of  the  United  States  and  to  give  effect  to  the  civil 
institutions  of  the  Mississippi  Territory.  The  public  faith 
was  pledged  for  the  protection  of  persons  and  property. 
Such  as  desired  to  depart  would  be  allowed  to  do  so,  with 
goods  and  chattels.4 

The  country  between  the  Pearl  and  the  Perdido  had  al 
ready  been  annexed  by  Congress,  May  14,  1812,  to  the 
Mississippi  Territory.  July  22,  the  conquest  was  followed 
up  by  an  act  making  Mobile  a  port  of  entry. 

1  Amer.   State  Papers,   For.   Rel.,  iii,  572  et  seq.       z  Niles,  iv,  216. 
3  Niles,  iv,  209.  *  Ibid.,  224. 


241]  THE  CONQUEST  OF  FLORIDA  57 

At  a  subsequent  date  Amelia  Island  again  became  a 
source  of  anxiety.  November '12,  1817,  the  Secretary  of 
War  issued  orders  the  object  of  which  was  to  break  up  a 
nest  of  adventurers  who,  under  the  leadership  of  Aury,  had 
seized  the  island  and  declared  their  independence.  Fernan- 
dina  was  to  be  occupied  and  the  violation  of  our  revenue 
laws  prevented.  The  occupation  was  effected  December 
23-24,  without  opposition.1 

About  the  same  time  affairs  were  approaching  a  crisis 
farther  to  the  west.  The  Spanish  authorities  there,  through 
weakness,  indifference,  or  maliciousness,  probably  the  first, 
in  violation  of  express  treaty  stipulations,  allowed  the  In 
dians  in  Florida,  together  with  runaway  negroes,  to  harass 
our  borders  until  it  was  deemed  no  longer  bearable.  Decem 
ber  1 6,  1817,  orders  were  issued  by  Mr.  Calhoun  to  Gen 
eral  Gaines,  the  commanding  officer  at  Fort  Scott,  Georgia, 
to  chastise  the  Indians,  and  to  attack  them  within  the  limits 
of  Florida,  should  it  be  found  necessary,  unless  they  took 
refuge  under  a  Spanish  post.  In  that  event  he  was  to 
notify  the  Department  and  await  orders.  Ten  days  later 
General  Jackson,  the  division  commander,  was  ordered  to 
assume  command  and  direct  the  operations  in  accordance 
with  the  above  orders,  copies  of  which  were  furnished  to 
him.2 

In  offering  his  services  in  the  War  of  1812,  General 
Jackson  said  that  his  Tennessee  men  had  no  "  constitutional 
scruples,"  but  would,  if  directed,  plant  the  American  eagle 
on  the  walls  of  Mobile,  Pensacola,  and  St.  Augustine.3  He 
appears  to  have  thought  that  the  time  had  now  arrived. 
"  This  can  be  done,"  he  wrote  privately  to  President  Mon 
roe,  asking  for  larger  latitude  in  his  orders,  "  without  im- 

1  Ann.,   17  Cong.,   I    Sess.,  2483.      2  Ann.,   15   Cong.,  2   Sess.,  2158. 
3  Schouler,  iii,  67  et  seq. 


58  MILITARY  GOVERNMENT  [242 

plicating  the  government.  Let  it  be  signified  to  me  through 
any  channel  (say  Mr.  J.  Rhea)  that  the  possession  of  the 
Floridas  would  be  desirable  to  the  United  States,  and  in 
sixty  days  it  will  be  accomplished."  *  He  received  no  reply, 
and  probably  went  on  the  theory  that  "  silence  gives  con 
sent."  President  Munroe  was  sick  at  the  time  Jackson's 
letter  was  received,  and  is  said  not  to  have  read  it  for  a 
year  or  more. 

In  a  short  time  after  reaching  his  post  the  general  was 
pursuing  his  savage  foes  through  the  forests  and  swamps 
of  Florida.  Before  the  end  of  May  the  Spanish  troops  at 
Pensacola  had  been  captured  and  sent  off  to  Havana  at 
the  expense  of  the  United  States,  and  the  American  flag 
was  flying  over  the  forts.  "  The  articles  of  capitulation," 
said  the  general,  "  with  but  one  condition,  amounted  to  a 
complete  cession  to  the  United  States  of  that  portion  of  the 
Floridas  hitherto  under  the  government  of  Don  Jose  Mazot." 
The  condition  referred  to  was  that  the  country  would,  by 
implication,  be  returned  to  Spain  whenever  she  had  the 
power  or  was  willing  to  abide  by  her  treaty  stipulations 
and  maintain  her  neutrality.2 

The  stipulations  referred  to  were  found  in  the  fifth  article 
of  the  treaty  of  1795,  by  which  each  of  the  contracting 
parties  agreed  "  to  restrain  by  force  all  hostilities  on  the 
part  of  the  Indian  nations  "  within  their  respective  boun 
daries  upon  the  citizens  of  the  other. 

The  articles  of  capitulation  contained  the  usual  promise 
to  respect  property  and  private  rights.  The  Catholic  re 
ligion  was  to  be  maintained,  but  all  were  to  be  tolerated. 
"  I  deemed  it  most  advisable,"  continued  the  general,  "  to 
retain,  for  the  present,  the  same  government  to  which  the 

1  Schouler,  iii,  67  et  seq. 

2  Ann.,  15  Cong.,  2  Sess.,  2237,  2208,  2239,  2222. 


243]  THE  CON QUEST  OF  FLORIDA  59 

people  had  been  accustomed,  until  such  time  as  the  Exec 
utive  of  the  United  States  may  order  otherwise.  It  was 
necessary,  however,  to  establish  the  revenue  laws  of  the 
United  States,  to  check  smuggling,  which  had  been  car 
ried  on  successfully  in  this  quarter  for  many  years  past, 
and  to  admit  the  American  merchant  to  an  equal  participa 
tion  in  a  trade  which  would  have  been  denied  under  the 
partial  operation  of  the  Spanish  commercial  code.  Captain 
Gadsden  was  appointed  by  me  collector,  and  he  has  organ 
ized  and  left  the  department  in  the  charge  of  officers  on 
whom  the  greatest  confidence  may  be  reposed."  Colonel 
King  was  appointed  military  and  civil  governor,  and  was 
ordered  to  take  possession  of  the  archives  of  the  govern 
ment  and  see  that  they  were  preserved.1 

II.  JUSTIFICATION  OF  THE  SEIZURE 

General  Jackson  attempted  to  justify  his  conduct  in  the 
proclamation  announcing  the  appointment  of  Colonel  King. 
The  occupation  was  not  an  act  of  hostility  to  Spain,  nor  an 
effort  to  extend  the  boundaries  of  the  United  States;  its 
purpose  was  to  control  the  Indians,  to*  whom  the  Spanish 
authorities  were  often  compelled,  from  policy  or  necessity, 
to  issue  munitions  of  war,  thus  enabling,  if  not  exciting, 
them  to  raise  the  tomahawk  against  us.  "  The  immutable 
laws  of  self-defense,  therefore,  compelled  the  American 
Government,  to  take  possession  of  such  parts  of  the  Floridas 
in  which  the  Spanish  authority  could  not  be  maintained." 
In  a  letter  to  the  Secretary  of  War,  dated  June  2,  1818,  he 
said :  "  On  the  immutable  principles  of  self-defense,  author 
ized  by  the  law  of  nature  and  nations,  have  I  bottomed  all 
my  operations."  2 

.  !  Ann.,   15   Cong.,  2   Sess.,  2241.  z  Ibid.,  2209. 


6o  MILITARY  GOVERNMENT  [244 

It  could  hardly  have  been  expected  that  such  conduct 
would  pass  unnoticed  by  even  the  most  impotent  power. 
Negotiations  were  then  pending  for  the  purchase  of  Florida. 
These  were  immediately  broken  off  at  Madrid,  with  a  de 
mand  for  the  punishment  of  the  offender  and  a  disavowal 
of  his  acts,  the  restitution  of  the  ports,  and  the  payment  of 
an  indemnity.  Mr.  Onis,  the  Spanish  minister  at  Wash 
ington,  declared  that  "  no  principle  can  be  adduced  to  sup 
port  or  justify  the  hostile  proceedings  of  General  Jackson 
in  Florida,  marked  as  they  are  by  a  series  of  outrages  un 
precedented  and  unknown  in  history.  He,  as  your  own  gov 
ernment  admits,  acted  contrary  to  orders.  Public  opinion 
in  the  United  States  has  uniformly  reprobated  these  ex 
cesses,  as  well  as  the  specious  pretext  with  which  he  has 
endeavored  to  gloss  them  over."  * 

But  the  general  had  an  able  defender  in  the  Secretary 
of  State,  Mr.  Adams,  who  adopted  this  line  of  defense: 
"  The  President,  to  demonstrate  to  the  world  that  neither 
the  desire  of  conquest,  nor  hostility  to  Spain,  had  any 
influence  in  the  councils  of  the  United  States,  has  directed 
the  unconditional  restoration  to  any  Spanish  officer  duly 
authorized  to  receive  them,  of  Pensacola  and  the  Barancas, 
and  that  of  St.  Mark's  to  any  force  adequate  to  its  defense 
against  the  attack  of  the  savages.  But  the  President  will 
neither  inflict  a  punishment,  nor  pass  a  censure  upon  Gen 
eral  Jackson  for  that  conduct,  the  motives  for  which  were 
founded  in  the  purest  patriotism;  of  the  necessity  for 
which  he  had  the  most  immediate  and  effectual  means  of 
forming  a  judgment,  and  the  vindication  of  which  is  writ 
ten  in  every  page  of  the  law  of  nations,  as  well  as  the  first 
law  of  nature — self-defense."  He  then  instructed  Mr. 
Erving,  our  minister  at  Madrid,  to  demand  the  punishment 

1  Ann.,    15   Cong.,   2   Sess.,    1885,    1925,    1907. 


245]  THE  CONQUEST  OF  FLORIDA  6l 

of  the  Spanish  governor  and  commandant  in  Florida  for 
violating  the  engagements  of  Spain  with  the  United  States.1 

This  demand,  perhaps  more  audacious  than  just,  quieted 
Madrid.  After  hearing  the  arguments  by  which  it  was 
backed  up,  the  other  powers  decided  not  to  interfere. 

In  Congress,  also,  the  matter  was  thoroughly  aired.  In 
both  houses  majorities  of  the  committees  to  whom  the 
matter  was  referred  reported  adversely  to  the  general.  For 
more  than  three  weeks  the  debates  on  these  reports  occupied 
almost  the  entire  time  of  Congress  and  excited  much  interest 
throughout  the  country.  In  the  end,  however,  not  a  single 
charge  was  sustained  by  a  vote  of  censure.  Even  the  seizure 
of  Pensacola  went  unrebuked,  the  vote  in  the  House  being 
seventy  to  one  hundred.  But  it  is  not  to  be  presumed  that 
the  general's  conduct  was  believed  by  Congress  to  have  been 
altogether  justifiable  and  legal.  The  absurdity  of  condemn 
ing  a  general  whose  acts  had  been  so  far  justified  by  the 
administration  as  to  satisfy,  or  at  least  silence,  the  coun 
tries  most  interested,  Spain  and  England,2  as  well  as  the 
popularity  of  the  hero  of  New  Orleans,  must  have  had  its 
influence. 

The  bold  stand  taken  by  Secretary  Adams,  who  seems 
to  have  been  Jackson's  most  ardent  supporter,  was  not  con 
curred  in  by  all  the  Cabinet,  as  later  events  revealed.  The 
task  which  President  Monroe  undertook  was  to  shield  the 
general,  the  net  results  of  whose  exploits  was  productive 
of  good  to  the  country,  and  to  avoid  a  war  with  Spain. 
The  disobedience  to  orders  was  overlooked.  The  orders 
issued  by  Jackson  to  Gaines  to  capture  St.  Augustine  were 
promptly  countermanded.  Hostile  intentions  were  denied, 
and  an  offer  was  made  to  restore  the  posts.  And  thus  the 
President's  ends  were  accomplished. 

1  Ann.,    15   Cong.,   2   Sess.,    1932. 

2  England,   for  the  execution  of  Arbuthnot  and  Ambrister. 


62  MILITARY  GOVERNMENT  [246 

III.  MILITARY  ADMINISTRATION 

But  little  record  of  the  actual  proceedings  of  the  military 
governor  in  Florida  has  come  down  to  us,  nor  is  it  likely 
there  was  much  to  record.  At  that  time  Pensacola,  the 
seat  of  empire,  was  only  a  straggling  village  of  about  five 
hundred  dwellings.  Its  commerce  cannot  have  been  very 
considerable,  but  Mr.  Onis,  the  Spanish  minister  at  Wash 
ington,  thought  the  revenues  worth  having,  and  demanded 
them  of  Mr.  Adams,  Secretary  of  State.1  In  reply,  Secre 
tary  Adams  said  that  the  revenue  thus  collected  was  far 
from  adequate  to  meet  the  expenses  incurred  in  prosecuting 
a  war  which  Spain  was  bound  to  prevent.  This  deficit 
Spain  should  make  good.2 

In  the  internal  administration  no  military  officer  except 
Colonel  King  held  any  office.  The  civil  officers  were  ap 
pointed  from  among  the  citizens,  writh  Mr.  McKinsey,  of 
Mobile,  at  the  head  of  the  magistracy.  Some  of  the  jus 
tices  thus  appointed  followed  Spanish  custom  in  deciding 
cases  in  a  summary  way,  but  failed  to  make  a  record  of 
their  judicial  proceedings.  Several  cases  of  importance 
were  decided  in  this  way,  and,  as  they  could  not  be  followed 
up  for  want  of  proper  tribunals  and  officers,  no  little  in 
convenience  resulted.3 

The  Nashville  Clarion,  June  16,  said  that  the  arrival 
of  the  American  troops  was  hailed  with  joy  at  Pensacola. 
Real  property  rose  three  hundred  per  cent,  in  three  days.4 
This  must  have  been  very  gratifying  to  the  Nashville  specu 
lators  who  have  bought  land  there  in  the  hope  o>f  American 
occupation.5  About  three  months  after  the  Americans  en 
tered  Pensacola,  General  Gaines  reported  that  the  Spanish 


1  Ann.  15  Cong.  2  Sess.,  1907,  1945.  2  j^.,  2317. 

3  Amer.   State   Papers,   Misc.,   ii,  902.  *  Niles,  xiv,  337. 

6  Ann.,  ibid.,  2300. 


247]  THE  CONQUEST  OF  FLORIDA  63 

who  remained  had  found  no  fault  with  the  authorities  estab 
lished  by  General  Jackson,  and  that  the  utmost  harmony 
prevailed  among  all  classes  of  citizens. 

The  order  to  General  Gaines  to  deliver  Florida  to  the 
Spaniards  was  issued  as  early  as  August  14,  iSiS,1  but 
the  actual  delivery  of  Pensacola  did  not  take  place  until 
February  8,  iSiQ.2  Amelia  Island  does  not  appear  ever 
again  to  have  passed  out  of  the  hands  of  the  United  States. 
Concerning  the  administration  of  this  island  a  few  more 
details  have  been  preserved. 

Soon  after  Fernandina  was  occupied,  Major  Bankhead, 
the  commanding  officer,  issued  a  series  of  ordinances  (Jan 
uary  5,  1818)  for  the  government  of  the  island,  to  be 
effective  until  the  further  pleasure  of  the  United  States  was 
known.  One  related  to  the  customs,  and  required  that 
duties  on  goods  subject  to  duty  in  the  United  States  should 
be  paid  to  the  commanding  officer  for  the  benefit  of  the 
United  States.  It  was  recommended,  however,  that  such 
goods  be  landed  and  entered  at  St.  Mary's.  Another  made 
certain  regulations  for  the  collection  of  debts.  Two  jus 
tices  of  the  peace,  with  power  to  appoint  a  sheriff,  were  in 
stalled  to  administer  the  laws,  but  were  directed  to  make 
no  decision  in  a  criminal  case  affecting  the  life  of  the 
accused.  The  commanding  officer  reserved  the  right  to 
decide  all  cases  of  riot.  Direction  was  further  given  that 
the  usages  and  customs  of  the  United  States  should  be  fol 
lowed  in  all  cases. 

In  reporting  these  regulations,  Major  Bankhead  said  that 
necessity  had  impelled  him  to  make  them  in  order  to  settle 
disputes.  The  people  seemed  to  be  determined  to  avoid  the 
payment  of  debts  and  to  plunder  wherever  they  could. 
The  two  justices  whom  he  had  appointed  in  conjunction 

1  Ibid.,  2174.  2  Niles,  xvi,  40,  160. 


64  MILITARY  GOVERNMENT  [248 

with  Commodore  Henly  had  discharged  their  duty  in  a 
satisfactory  manner.1 

Mail  facilities  were  not  very  good  in  those  days,  but  this 
report  (dated  January  10,  1818)  can  hardly  have  been  four 
months  in  reaching  Washington.  May  14,  1818,  Secretary 
Calhoun  ordered  the  major  to  discontinue  taking  bonds  on 
goods  imported  into  Amelia  Island,  and  to  turn  over  the 
bonds  already  taken  to  the  collector  at  St.  Mary's,  at  which 
place  goods  were  to  be  landed  thereafter.  The  purpose  of 
this  order  is  not  definitely  stated,  but  appears  to  have  been 
merely  to  stop  the  irregular  collection  of  duties  at  Fernan- 
dina  on  goods  intended  for  importation  into  the  United 
States.  If  any  goods  were  carried  from  St.  Mary's  to 
Fernandina,  they  probably  went  in  free  of  duty.  No  fur 
ther  directions  appear  to  have  been  issued  from  Wash 
ington. 

In  spite  of  the  conditions  of  war  brought  on  by  the 
occupants,  they  endeavored  to  manage  affairs  on  a  peace 
basis.  This  is  illustrated  by  a  demand  made  by  General 
Gaines,  December  28,  1818,  then  in  Amelia  Island,  of  Gov 
ernor  Coppinger  for  the  release  of  a  soldier  and  two  citi 
zens  reported  to  have  been  captured  at  St.  John's  by  a  body 
of  armed  men  led  by  a  Spanish  officer.  Explanations  and 
the  punishment  of  the  offender  were  expected.  The  gov 
ernor's  reply  is  not  given. 

The  inhabitants  of  Amelia  Island  were  in  bad  odor,  it 
not  being  believed  that  they  had  gone  there  simply  for  the 
sake  of  the  climate.  They  were  few  in  number,  and  about 
the  only  government  needed  was  one  of  strict  police  con 
trol.  This  was  maintained  by  the  commanding  officer  until 
the  island  was  finally  ceded  with  Florida  in  1821. 

1  H.  Ex.  Doc.,   15  Cong.,  2  Sess.,  no.  117. 


CHAPTER  IV 
THE  FINAL  ACQUISITION  OF  FLORIDA 

I.  TAKING  POSSESSION  OF  THE  COUNTRY.  ITS  CONDI 
TION.  REORGANIZATION 

THE  treaty  by  which  the  Floridas  finally  came  to  the 
United  States  was  signed  February  22,  1819,  but  ratifica 
tions  were  not  exchanged  for  two  years.  It  was  proclaimed 
at  Washington  on  the  second  anniversary  of  its  signature. 
The  stipulation  regarding  the  inhabitants  was  substantially 
the  same  as  that  in  the  Louisiana  treaty,  with  the  addition 
that  such  as  desired  to  remove  to  the  Spanish  dominions 
should  be  permitted  to  sell  or  export  their  effects,  at  any 
time  whatever,  without  being  subject  to  any  duties.  March 
3,  1821,  an  act  of  Congress  was  approved  authorizing  the 
President  to  take  possession  of  and  govern  the  Floridas 
under  substantially  the  same  terms  as  those  granted  in  the 
act  of  October  31,  1803,  for  Louisiana.  In  the  same  act 
the  revenue  laws  were  extended  and  the  President  was 
authorized  to  appoint  such  officers  as  he  might  think  neces 
sary  for  their  execution.  After  this  no  action  was  taken 
by  Congress  until  March  30,  1822,  when  the  act  estab 
lishing  the  Territory  of  Florida  became  a  law.  The  inter 
vening  time  was  for  Florida  one  of  "  great  productivity — of 
documents,"  as  was  wittily  remarked  at  the  time. 

In  a  sort  of  poetic  justice  to,  and  justification  of,  General 
Jackson,  that  worthy  was  commissioned  to  receive  the  new 
territory  and  become  the  governor  of  the  same  when  re 
ceived.  It  must  have  afforded  the  general  no  little  pleasure 
249]  65 


66  MILITARY  GOVERNMENT  [250 

to  return  to  Pensacola  and  bid  a  final  farewell  to  the  Spanish 
Dons  as  he  received  from  them  the  country  he  had  once 
taken  by  force  of  arms,  and  against  the  surrender  of  which 
he  had  vigorously  protested. 

The  delivery  of  the  Floridas  was  to  be  made  in  six 
months  after  the  exchange  of  the  ratifications  of  the  treaty, 
or  sooner,  if  possible.  General  Jackson  left  Nashville  April 
24,  1821,  to  carry  out  his  commission,  and  was  on  the 
Florida  border  in  about  a  week.  He  was  too  familiar  with 
the  Spaniard's  ever-ready  hasta  manana  to  expect  an  imme 
diate  fulfilment  of  the  treaty,  but  this  did  not  mollify  the 
irritating  influence  which  the  numerous  delays  had  upon 
his  irascible  temper.  The  transfer  was  finally  effected  at 
Pensacola,  July  17,  1821,  with  some  dramatic  effect,  by 
General  Jackson  and  Don  Jose  Callava.  Still  further  delay 
had  been  expected  in  East  Florida,  but  the  transfer  there 
was  effected  a  week  earlier  than  at  Pensacola,  by  Colonel 
Robert  Butler  and  Don  Jose  Coppinger.  Everywhere  the 
Spanish  claimed  the  cannon  in  the  fortifications,  but  the 
Americans  would  not  allow  them  to  be  carried  off,  and  they 
were  left  for  further  negotiations.  At  St.  Augustine  the 
archives  were  left  under  the  same  conditions.1 

The  proclamation,  furnished  from  Washington,  issued  by 
General  Jackson  was  of  the  same  general  tenor  as  that 
published  in  Louisiana  by  Governor  Claiborne.2 

At  the  time  of  the  transfer  the  population  of  Florida 
was  very  small.  The  only  towns  of  any  importance  were 
Pensacola  and  St.  Augustine.  The  former  had  the  finest 
harbor  in  Florida  and  once  enjoyed  a  considerable  overland 
trade  with  St.  Augustine,  but  its  greatness  had  long  since 
passed  away.  Its  dignity  now  depended  chiefly  on  the  fact 

1  Niles,  xx,  404;  Ann.  17  Cong,  i  Sess.,  1918,  1950. 

2  Ibid.,  1924  et  seq. 


251]  THE  FINAL  ACQUISITION  OF  FLORIDA  67 

that  the  governor  still  resided  there  and  kept  a  few  troops 
with  him  to  garrison  Fort  Barrancas,  six  miles  distant  at 
the  entrance  to  the  bay.  Nearly  all  the  houses  were  in  a 
state  of  dilapidation,  and  hardly  more  than  half  were  occu 
pied.  The  government  building,  a  frame  structure  propped 
up  with  unhewn  timber,  was  considered  unsafe.  At  St. 
Augustine  some  government  buildings  had  been  begun  on 
a  pretentious  scale  years  before,  but  had  been  allowed  to 
fall  into  decay.1 

The  inhabitants  consisted  mainly  of  West  Indian  traders, 
smugglers,  privateersmen,  Indians,  runaway  negroes,  and 
renegade  white  men  from  the  States.  In  Mrs.  Jackson's 
opinion  the  last  two  formed  the  worst  element.  The  people 
did  not  observe  the  Sabbath  according  to  her  notions  of 
propriety,  the  noise,  swearing,  and  bustling  trade  being 
especially  jarring  to  her  nerves.2  The  general's  report  was 
slightly  different.  He  found  the  inhabitants  a  sober,  or 
derly,  peaceable,  and  well-meaning  people.  His  opinion  of 
the  Spanish  population  was  favorable,  "  excepting  of  such 
as  have  been  employed  by  the  government,  which  seems 
to  have  had  everywhere  the  same  corrupting  influence 
over  the  minds  and  morals  of  those  engaged  in  its  admin 
istration/'  3 

Little  needs  to  be  said  about  the  laws  and  political  sys 
tem  beyond  the  statement  that,  theoretically,  they  were 
much  like  those  of  Louisiana.  The  political  organiza 
tion,  however,  was  very  defective.  An  elaborate  system 
had  been  provided  for  in  the  Spanish  constitution,  which 
was  proclaimed  in  Cuba  4  and  Florida,  but  it  never  was  put 

1  Ann.,    17   Cong.,   i    Sess.,    1938;    Forbes,  Sketches  of  Fla.    (1821), 
87  et  seq. 

2  Parton,  Jackson,  ii,  603  et  seq, 

3  Ann,  ibid.,  2539-  4  Niles>  xviii»  ^ 


68  MILITARY  GOVERNMENT  [252 

into  full  operation.  Colonel  Callava  explained  the  defective 
organization  by  saying  that,  considering  the  probability  of 
an  early  transfer  of  sovereignty,  he  had  not  thought  it 
worth  while  to  remedy  the  defect.  The  military  officers 
often  performed  the  duties  of  civil  magistrates. 

At  the  time  of  his  appointment,  Governor  Jackson  was 
an  officer  of  the  army,  but  his  commission  expired  June  i. 
After  that  date  the  commanding  officer  in  Florida  was 
directed  to  honor  his  requisition  for  such  military  assist 
ance  as  might  be  necessary  to  enforce  his  authority.1  The 
commission  given  to  General  Jackson  as  governor,  author 
ized  him  "to  exercise  all  the  powers  and  authorities  hereto 
fore  exercised  by  the  governor  and  captain-general  and  in- 
tendant  of  Cuba,  and  by  the  governors  of  East  and  West 
Florida,  within  the  said  provinces,  respectively,"  under  such 
limitations  as  had  been,  or  might  be,  prescribed  by  the 
President,  or  by  law.  The  power  to  lay  or  collect  any  new 
taxes  or  to  confirm  any  land  titles  was  expressly  denied.2 
The  country  was  divided  into  three  collection  districts, 
and  revenue  officers  were  appointed  for  them.  A  list  of 
these  officers,  together  with  another  civil  list,  which  in 
cluded  two  "  judges  of  the  United  States  "  and  two  Terri 
torial  secretaries,  was  sent  to  Governor  Jackson,3  presum 
ably  simply  for  his  information,  as  they  were  appointed 
according  to  an  act  of  Congress  and  he  had  no  direct  con 
nection  with,  or  control  over  any  of  them,  except  the  secre 
taries. 

The  day  after  the  transfer  of  sovereignty  was  effected, 
"  Major-General  Andrew  Jackson,  Governor  of  the  prov 
inces  of  the  Floridas,  exercising  the  powers  of  the  Captain- 

1  President's  Message  of  April  5,  1822. 

*  Ann.,  17  Cong.,  i  Sess.,  1922  et  seq.  3  Ibid.,  1927. 


253]  THE  FINAL  ACQUISITION  OF  FLORIDA  69 

General,"  etc.,  etc.,  proceeded  to  the  business  of  legislation. 
The  first  act  ordained  that  there  should  be  appointed  an 
nually  by  the  governor  a  chief  officer,  to  be  called  the  mayor, 
and  six  subordinate  officers  as  councilmen,  endowed  with 
the  powers  necessary  for  the  good  government  of  Pensa- 
cola.  They  were  to  impose  fines  and  levy  such  taxes  as 
were  necessary  for  the  support  of  the  town  government. 
To  remove  doubts  as  to  the  powers  of  the  mayor  and  coun 
cil  in  regulating  the  observance  of  the  Sabbath,  they  were 
expressly  empowered  to  make  proper  ordinances  for  that 
purpose.  The  ordinance  further  prohibited,  under  severe 
penalties,  public  gaming-houses  and  public  gaming  of  every 
description,  except  billiards.  A  similar  inhibition  was  laid 
upon  the  sale  of  liquor  to  soldiers  of  the  United  States. 
Another  ordinance  prescribed  certain  quarantine  regula 
tions.1 

At  some  time,  probably  before  this,  it  occurred  to 
General  Jackson  that  it  might  be  well  to  know  something 
of  the  laws  he  had  promised  to  maintain  and  of  the  machin 
ery  of  the  government  he  was  expected  to  administer.  On 
the  way  down  he  met  Mr.  H.  M.  Brackenridge,  of 
Pennsylvania,  a  gentleman  of  some  accomplishments,  well 
versed  in  French  and  Spanish,  and  asked  him  to  take  part 
in  forming  the  government.2  Mr.  Brackenridge  was  ap 
pointed  alcalde  of  Pensacola,  and  was  directed  to  inves 
tigate  and  report  upon  the  Spanish  law  and  political  system. 

But  the  governor  was  not  idle  while  waiting  for  this 
report.  July  21,  he  issued  a  decree  dividing  the  territory 
into  two  counties,  and  ordering  the  establishment  of  county 
courts,  with  five  justices  of  the  peace  for  each.  The  pro 
ceedings  in  all  civil  cases  were  to  be  conducted  according 
to  the  Spanish  law,  except  in  the  examination  of  witnesses; 

1  Ann.,   17  Cong.,   I   Sess.,  2547  et  seq.        -  Parton,  Jackson,  ii,  615. 


70  MILITARY  GOVERNMENT  [254 

in  criminal  cases,  according  to  the  common  law,  that  is, 
on  indictment  by  a  grand  jury.  Criminal  trials  were  to  be 
public,  and  by  a  jury  of  the  county.  The  examination  of 
witnesses  was  to  be  viva  voce  in  open  court.  Indictments 
were  to  be  made  in  the  name  of  the  United  States.  The 
judges  were  empowered  to  impose  such  taxes  as  were  neces 
sary  to  carry  this  ordinance  into  effect.  Five  days  later 
another  ordinance  was  promulgated  explaining  the  method 
of  procedure  in  the  county  courts,  and  fixing  the  fees  to 
be  received  by  their  officers.1 

In  a  few  days  Mr.  Brackenridge  was  ready  to  report.. 
According  to  this  report  there  was,  besides  the  governor, 
only  one  provincial  officer,  the  alcalde,  actually  in  the  exer 
cise  of  any  civil  functions.  While  the  duties  of  this  officer 
were  defined  by  law,  he  had,  in  Florida,  exercised  some 
functions  not  strictly  belonging  to  his  office,  such  as  chief 
of  police,  sheriff,  superintendent  and  inspector  of  prisons, 
and  notary  public.  Mr.  Brackenridge's  predecessor  had 
summed  it  up  by  saying  that  the  alcalde  had  more  power 
than  the  governor.  By  the  decrees  of  the  Cortes,  passed 
under  the  Spanish  constitution,  the  viceroys  and  ultra 
marine  commandants  were  limited  to  functions  of  a  political 
and  military  nature,  and  the  intendant  to  the  management 
of  the  revenue.  This  was  done  in  the  expectation  that 
they  would  be  aided  by  other  officers  and  tribunals,  but, 
as  a  matter  of  fact,  such  officers  were  never  appointed  in 
Florida,  and  this  left  the  civil  administration,  especially  in 
the  judiciary,  very  defective.  There  was  at  the  time  no 
authority  in  the  province  to  decide  a  law-suit.  The  gov 
ernor  still  exercised  the  powers  of  an  admiralty  judge,  by 
virtue  of  what  law  was  not  known.  It  was  the  only  judicial 
power  exercised  by  him  since  the  adoption  of  the  consti- 

1  Ann.  17  Cong,  i  Sess.,  2551,  2554. 


255]  THE  FINAL  ACQUISITION  OF  FLORIDA  7! 

tution.  In  towns  of  less  than  one  thousand  souls,  all  the 
civil  functions  were  generally  discharged  by  the  alcalde; 
in  larger  towns  the  constitution  gave  the  right  to  a  cabildo, 
or  mayor  and  aldermen.  To  these  Pensacola  was  entitled, 
inasmuch  as  it  was  a  capital  city.  It  once  had  a  corporation, 
but  this  had  fallen  into  disuse. 

In  view  of  these  facts,  Mr.  Brackenridge  was  at  a  loss 
how  to  proceed.  To  require  an  election  for  the  cabildo  he 
thought  would  be  to  require  an  impossibility,  as  there  was 
no  officer  to  hold  an  election,  nor  any  way  to  find  out  the 
qualified  electors.  He  was  also  at  a  loss  to  know  whether 
he  was  to  be  governed  by  the  Spanish  laws  in  force  before 
the  promulgation  of  the  constitution,  or  by  those  passed  since 
that  period.  If  by  the  latter,  to  what  period  were  those  de 
crees  to  be  considered  in  force;  to  the  ratifying  of  the  treaty, 
to  the  present  time,  or  until  the  establishment  o>f  a  govern 
ment  by  act  of  Congress?  It  might,  perhaps,  admit  of  a 
doubt  whether  the  Constitution  of  the  United  States  did  not 
extend  its  authority  over  this  country  by  virtue  of  its  coming 
under  the  American  government;  if  so,  that  would  secure 
to  American  citizens  an  open  and  public  trial  by  jury.  In 
completing  the  organization  he  thought  that  the  interests 
of  the  Americans,  who  already  outnumbered  the  Spanish, 
should  be  considered.1 

The  Spanish  organization  in  East  Florida  was  not  quite 
so  defective.  Besides  the  governor,  there  were  an  alcalde, 
a  cabildo,  and  a  judge,  all  in  the  exercise  of  the  functions 
of  their  offices.  Governor  Jackson  directed  that  they  should 
not  be  disturbed,  if  they  were  of  good  moral  character  and 
would  take  the  necessary  oaths  of  office.  Captain  Bell  was 
commissioned  to  act  as  governor  pending  the  arrival  of 
Mr.  W.  G.  D.  Worthington,  commissioned  Secretary  and 

1  Ann.,   17  Cong.,   i    Sess.,  2540  et  seq. 


72  MILITARY  GOVERNMENT  [256 

Acting  Governor  of  East  Florida,  and  was  directed  to  ap 
point  new  officers  in  all  cases  where  the  incumbents  refused 
to  take  the  necessary  oaths.1 

II.  REVIEW  OF  THE  GOVERNOR'S  ACTION 

In  justification  of  his  course,  Governor  Jackson  said 
(July  30)  :  "  The  commission  under  which  I  act  does  not 
define  my  powers;  and,  I  assure  you,  I  am  not  a  little  at 
a  loss  when  left  to  collect  them  from  the  nature  of  the 
office.  Judging  from  the  practice  in  Spanish  colonies,  the 
viceroy,  or  captain-general,  possesses  legislative  as  well  as 
executive  powers  over  the  provinces  placed  under  his  gov 
ernment.  O'Reilly,  in  Louisiana,  of  his  own  authority,  in 
troduced  the  Spanish  law,  and  established  tribunals  exactly 
modeled  after  those  of  Spain.  But,  according  to  the  de 
crees  passed  under  the  constitution,  those  officers  are  strictly 
confined  to  the  exercise  of  military  and  executive  or  polit 
ical  power.  ...  In  this  uncertainty,  I  have  contented  my 
self  with  merely  organizing  a  government  from  the  mate 
rials  at  hand,  with  as  little  change  as  possible;  promul 
gating  the  same  by  way  of  ordinance,  in  order  that  the 
people  may  have  some  knowledge  of  the  system  to  which 
they  must  conform.  These  ordinances  I  now  transmit  for 
the  approval  of  the  President."  2 

The  legal  justification  of  the  governor's  acts  depended  on 
what  laws  were  in  force  in  Florida.  In  his  proclamation  the 
general  had  promised  to  preserve  the  local  laws  and  institu 
tions.  The  Spanish  constitution  3  had  been  proclaimed  in 
Florida,  but  he  afterwards  found  it  convenient  to  deny  that 
it  had  any  force  there.  We  have  met  the  statement  that  public 

1  Ann.,   17   Cong.,   I    Sess.,  2029.  2  Ibid.,  2537. 

3  This  lengthy  document  may  be  found  entire  in  Niles,  xviii,  196 
et  seq. 


THE  FINAL  ACQUISITION  OF  FLORIDA  73 

law  ceases  to  be  operative  upon  the  transfer  of  sovereignty. 
This  statement  must  be  qualified  to  mean  such  public  law 
as  defines  the  relations  of  subject  and  sovereign.  It  cer 
tainly  will  not  be  contended  that  the  body  of  public  law 
which  provides  the  machinery  of  local  administration  ceases 
with  the  transfer  of  sovereignty,  for  that  would  leave  the 
country  in  a  state  of  anarchy.  So  much  of  the  Spanish  con 
stitution,  then,  as  defined  the  relations  of  the  inhabitants  of 
Florida  to  the  Spanish  sovereign  ceased  with  the  transfer, 
and  only  this.  The  rest  of  it,  which  was  concerned  with  local 
organization  and  defined  private  law  relations,  so  far  as  not 
contrary  to  our  own  laws,  remained,  or  ought  to  have  re 
mained,  in  full  force  until  changed  by  the  new  sovereignty. 
Governor  Jackson  was  not  the  sovereign.  The  laws  relating 
to  local  organization  and  administration  had  not,  indeed,  been 
put  into  full  operation  in  Florida,  owing  to  the  negligence 
of  the  Spanish  officials,  who  excused  themselves  by  refer 
ence  to  the  impending  transfer,  but  this  did  not  alter  their 
binding  force. 

For  the  government  to  limp  along  in  the  maimed  con 
dition  in  which  he  found  it  seemed  intolerable  to  Governor 
Jackson.  He  began  the  process  of  healing  by  appointing 
an  alcalde,  an  office  made  elective  by  the  constitution  (Art. 
312).  The  same  was  true  of  the  aldermen  (regidors). 
The  municipal  councils  were  to  be  established  by  the  pro 
vincial  council,  which  latter  body  also  was  elective.  The 
direction  as  to  how  justice  should  be  administered  was  left 
to  the  Cortes.  General  Jackson  said  that,  his  ordinances 
made  known  the  rules  rather  than  prescribed  new  ones,  ex 
cept  the  requirement  for  pronouncing  decrees  in  open  court 
and  the  giving  of  testimony  viva  voce.  The  statement  may 
be  true  in  part,  but  it  is  open  to  doubt.  Mr.  Brackenridge 
said  that  the  judge,  according  to  Spanish  law,  regulated 
his  own  charge  for  an  order  or  decree,  and  that  whatever 


74  MILITARY  GOVERNMENT  [258 

the  theory,  the  practice  in  Florida  had  depended  on  the  in 
dividual  in  office.  If  this  was  the  law,  General  Jackson  had 
changed  it  in  himself  fixing  the  scale.  But  Mr.  Bracken- 
ridge  was  wrong.  Under  the  constitution  (Art.  256)  the 
fees  were  to  be  fixed  by  the  Cortes.  The  governor  said 
that  trial  by  jury,  which  he  had  decreed,  was  in  the 
contemplation  of  the  Spanish  constitution,  as  well  as  that 
of  the  United  States.  A  careful  examination  of  the  former 
document  hardly  justifies  this  claim. 

The  clause  in  the  first  ordinance  giving  the  town  council 
power  to  make  such  regulations  as  they  deemed  proper  for 
the  observance  of  the  Sabbath  was  afterwards  attacked  by 
the  general's  opponents  as  violating,  or  authorizing  the 
council  to  violate,  the  treaty  and  his  commission,  by  which 
he  was  bound  to  protect  the  people  in  the  free  enjoyment 
of  their  religion.  The  council  might  even  deem  it  proper 
to  close  the  Catholic  church.1  This  charge  was  really 
too  silly  to  deserve  notice.  Such  powers  were  not  supposed 
to  rise  superior  to  statute  regulations  of  superior  authority. 
The  ordinance  simply  meant,  says  Par  ton,  that  Mrs.  Jack 
son  wished,  and  Governor  Jackson  ordained,  that  the  theatre 
and  gambling-houses  be  closed  on  Sunday.  And  this  was 
done.  The  taxes  authorized  to  be  levied  by  the  council, 
said  the  governor,  were  such  as  had  usually  been  paid. 

While  complaint  was  frequently  made  about  the  defective 
organization,  little  was  said  about  a  lack  of  Spanish  law 
on  the  subject.  The  general  probably  had  a  copy  of  the 
constitution.  If  not,  it  was  his  own  fault,  for  it  had  been 
published  in  English  in  the  United  States  nearly  a  year  be 
fore  he  started  for  Florida.  Mr.  Brackenridge  furnished 
him  with  a  copy  of  the  laws  regulating  alcaldes.  These 
laws  had  been  passed  under  the  constitution  in  1812,  and, 

1  Parton,  Jackson,  ii,  608. 


259]  THE  FINAL  ACQUISITION  OF  FLORIDA  75 

upon  its  restoration,  were,  with  other  laws  passed  under  it, 
revived.1  But  these  the  governor  deliberately  disregarded, 
in  spite  of  the  promises  in  his  proclamation. 

His  justification  for  this  was  that  "  the  greater  part  of 
the  population  of  this  country  are  Americans;  the  active 
commerce  is  carried  on  by  Americans;  hence  the  necessity 
of  assimilating  the  present  institutions  to  something  which 
they  can  understand,  and  of  administering  the  laws  by 
means  of  tribunals  not  altogether  foreign  to  their  habits 
and  feelings."  2 

If,  as  claimed,  the  Americans  already  outnumbered  the 
Spanish  (in  Pensacola),  it  would  not  have  been  contrary 
to  justice  to  give  them  no  small  share  of  the  offices,  pro 
vided  they  were  bona  fide  residents,  especially  as  the  gov 
ernment  was  ultimately  to  be  assimilated  to  the  American 
system.  Yet  Governor  Jackson  says  that,  in  making  up 
his  civil  list,  he  was  desirous  to  give  preference,  where  pos 
sible,  to  the  old  inhabitants.  However,  he  found  but  few- 
willing  to  accept  any  situation,  owing  to  their  unwillingness 
to  lose  their  rights  as  Spanish  subjects.  The  governor 
attributed  this  to  the  fact  that  the  greater  part  had  been 
connected  with  the  government  in  some  way,  or  that  they 
had  private  claims  which  might  be  prejudiced  by  any  act 
evincing  their  intention  to  become  American  citizens.3  The 
first  reason  seems  incredible,  in  view  of  the  fact  that  he 
found  it  necessary  to  have  a  special  commissioner  search 
for  the  government! 

Attention  has  not  been  called  to  these  irregularities  be 
cause  they  prove  that  the  general  was  guilty  of  high 
crimes  and  misdemeanors.  There  was,  indeed,  no  legal  ex 
cuse  for  them,  for  he  was  bound,  both  by  his  commission 
and  the  law  of  nations,  to  preserve  the  existing  municipal 

1  Ann.   17  Cong,   i   Sess.,  2547.          2  Ibid.,  2537.          8  Ibid.,  2539. 


76  MILITARY  GOVERNMENT  [26o 

regulations.  He  was  not  the  new  sovereignty  authorized 
to  change  them,  nor  could  he  do  it  under  his  commission 
as  captain-general,  that  office  having  been  stripped  of 
legislative  powers.  But  the  changes  were  bound  to  come, 
and  then  probably  was  the  best  time  to  begin.  The  chief 
lesson,  then,  lies  in  the  warning  against  making  promises 
the  meaning  of  which  is  not  known,  and  against  sending 
out  governors  to  strange  situations  with  powers  so  hedged 
about  as  to  render  their  office  a  nullity,  if  the  limitations 
be  observed. 


CHAPTER  V 
ADMINISTRATIVE  WORK  IN  FLORIDA 

I.  THE  CALLAVA-FROMENTIN  AFFAIR 

WE  now  come  to  one  of  the  most  serious,  and  at  the 
same  time  the  most  ludicrous,  of  the  acts  committed  by  Gov 
ernor  Jackson  during  his  stay  in  Florida, 

August  21,  1821,  Mr.  Brackenridge,  the  alcalde  of  Pen- 
sacola,  informed  Governor  Jackson  that  he  had  satisfactory 
evidence  that  important  documents  relating  to  estates  which 
belonged  to  his  office  were  in  the  possession  of  a  Spaniard 
named  Sousa,  and  requested  authority  to  make  a  regular 
demand  for  them.1  .  The  governor  immediately  granted 
the  request,  and  appointed  George  Walton,  Secretary  of 
West  Florida,  H.  M.  Brackenridge,  and  John  Miller,  county 
clerk,  a  committee  to  make  the  demand.  When  these  gen 
tlemen  called  upon  Sousa,  he  produced  several  boxes  of 
papers  and  allowed  them  to  be  examined.  Among  these 
the  committee  found  four  sets  of  papers  relating  to  prop 
erty  which  they  considered  of  importance  and  demanded 
their  possession.  This  Sousa  refused  on  the  ground  that 
he  was  the  servant  of  the  late  Governor  Callava,  and  could 
not  surrender  the  papers  without  an  order  from  him.  The 
committee  then  wrote  out  a  statement  for  Sousa,  saying 
that  they  regarded  him  only  as  a  private  person,  with  no 
authority  to  retain  the  documents,  and  again  demanded 
possession.  This  communication  he  refused  to  receive. 

1  Ann.  17  Cong,  i  Sess.,  2301  et  seq. 
261]  77 


78  MILITARY  GOVERNMENT  [262 

When  the  situation  was  reported  to  the  governor,  he 
ordered  Colonel  Butler,  of  the  army,  and  Mr.  Miller  to 
seize  Sousa,  together  with  the  papers,  and  bring  him  before 
the  governor  for  examination.  In  a  short  time  they  pro 
duced  Sousa,  but  reported  that  he  had  carried  the  papers 
to  Callava's  house  to  relieve  himself  of  the  responsibility 
for  them.  Sousa  was  now  committed  for  contempt,  and 
an  order  was  issued  to  the  military  to  secure  the  papers 
from  Callava,  or  to  take  him  into  custody. 

Colonel  Callava  was  soon  found,  but  refused  to  deliver 
the  papers,  and  asserted  his  rights  to  immunity  as  a  com 
missioner  of  Spain.  After  a  considerable  parley,  he  was 
taken  in  charge  and  carried  before  Governor  Jackson.  The 
statements  of  the  two  parties  to  this  affair  were  diamet 
rically  opposed.  The  colonel  declared  that  he  was  treated 
throughout  with  the  utmost  discourtesy  and  contempt.  On 
the  other  hand,  Mr.  Brackenridge  declared  that  Colonel 
Butler,  who  had  charge  of  the  military,  used  the  utmost 
delicacy.  Both  were  supported  by  "  many  respectable  wit 
nesses." 

About  ten  o'clock  at  night  Colonel  Callava  was  carried 
before  Governor  Jackson,  now  sitting  in  his  judicial  capac 
ity.  The  colonel  refused  to  answer  any  questions  relating 
to  the  papers,  and  protested  against  the  proceedings  as  a 
violation  of  his  rights.  Whereupon  the  judge  informed 
him,  with  considerable  warmth,  that  such  pretensions  could 
not  be  allowed.  Callava's  ire  also  warmed  up  and  he  only 
remained  the  more  obstinate.  His  steward,  Fullarat,  was 
then  questioned,  and  answered  that  his  master  had  the 
papers  desired.  Judge  Jackson  now  offered  to  send  an 
officer  with  any  one  Callava  might  name  to  bring  the  boxes, 
in  order  that  they  might  be  opened  and  the  papers  specified 
taken  out.  After  repeated  refusals,  the  colonel  and  his 
steward  both  were  committed  to  prison  about  midnight. 


263]  ADMINISTRATIVE  WORK  IN  FLORIDA  79 

In  both  instances  he  complained  of  bad  interpretation,  but 
there  can  be  no  doubt  that  he  understood  very  well  what 
was  wanted. 

The  next  day  the  papers  were  taken  out  and  the  box  re- 
sealed.  Thereupon  an  order  was  issued  for  the  release  of 
the  prisoners.  During  all  this  time  Colonel  Callava's  house 
was  carefully  guarded  by  a  squad  of  soldiers.  When  he 
returned  he  found  nothing  to  complain  of  except  that  the 
documents  so  often  demanded  had  been  taken  away. 

But  before  the  curtain  was  rung  down  upon  this  act  by 
the  release  of  the  prisoners,  another  actor  was  heard  ap 
proaching  behind  the  scenes.  This  was  none  other  than 
Eligius  Fromentin,1  "  Judge  of  the  United  States  for  West 
Florida,  .  .  .  empowered  to  execute  and  fulfil  the  duties  of 
that  office  according  to  the  Constitution  and  laws  of  the 
United  States." 

Finding  their  companion  in  prison,  some  of  Colonel  Cal 
lava's  friends  applied  to  the  above-named  judge  for  a  writ 
of  habeas  corpus  in  his  behalf.  This  was  soon  issued,  and 

1  A  little  knowledge  of  this  man's  antecedents  may  add  something 
to  our  understanding  of  the  situation. 

Eligius  Fromentin  was  a  native  of  France,  was  educated  in  a  Jesuit 
college,  and  entered  the  priesthood.  Being  expelled  from  France  dur 
ing  the  Revolution  he  came  to  America.  Soon  after  he  married  into 
an  influential  family  in  Maryland,  acquired  a  smattering  of  law,  and 
began  to  practice  in  New  Orleans.  Education,  suavity  of  manner, 
and  family  influence  finally  raised  him  to  the  dignity  of  a  United  States 
Senator.  When  the  Bourbons  were  restored  he  abandoned  his  wife 
and  returned  to  France  in  the  hope  of  ecclesiastical  preferment.  Dis 
appointed  in  his  expectations  there  he  returned  to  America,  but  his 
prospects  were  now  ruined  at  New  Orleans.  His  wife  accepted  his 
explanations  and  again  lived  with  him.  It  was  largely  through  the 
influence  of  her  family  that  President  Monroe,  ignorant  of  his  true 
character,  appointed  him  to  the  temporary  judgeship  in  West  Florida, 
thereby  rejecting  General  Jackson's  application  for  one  of  his  friends. — 
Parton,  Jackson,  ii,  616  et  seq. 


80  MILITARY  GOVERNMENT  [264 

Lieutenant  Mountz  was  directed  to  produce  the  body  of 
the  prisoner.  But  instead  of  doing  this  the  lieu  tenant 
handed  the  writ  to  Governor  Jackson,  who  immediately 
cited  Judge  Fromentin  to  appear  before  him  and  ex 
plain  why  he  had  attempted  to  interfere  with  the  gover 
nor's  authority.  The  judge  accordingly  appeared  and 
signed  a  statement  that  he  had  granted  the  writ  without 
any  affidavit,  merely  upon  the  verbal  application  of  a  num 
ber  of  gentlemen,  among  them  Mr.  Innerarity,  and  that  it 
had  been  delivered  to  one  of  the  applicants  to  be  served 
upon  Lieutenant  Mountz.1  This  acknowledgment,  together 
with  what  was  said  orally,  was  considered  a  sufficient  apol 
ogy,  and  the  judge  was  released  with  a  lecture  on  his  duties 
and  prerogatives,  and  a  threat  of  imprisonment  for  a  repe 
tition  of  the  offense. 

One  more  act  and  the  central  part  of  the  tragi-comedy 
closes. 

Soon  after  his  release,  Colonel  Callava  started  for  Wash 
ington  to  lay  his  grievances  before  the  Spanish  minister. 
Certain  Spanish  officers,  eight  in  number,  who  remained 
behind,  published  a  criticism  of  Governor  Jackson's  course 
in  dealing  with  the  colonel,  in  which  they  "  shuddered  at 
the  violent  proceedings  exercised  against  their  superior." 
As  Governor  Jackson  considered  the  language  of  their  state 
ment  offensive  and  believed  them  to  be  sowing  discontent 
in  the  minds  of  the  good  people  of  the  province,  he  ordered 
(September  29)  them  to  depart  before  October  3,  which 
they  ought  to  have  done  long  before,  conformably  to  the 
seventh  article  of  the  treaty.2 

Another  paragraph  may  be  added  here  to  give  the  sequel 
to  the  above,  though  General  Jackson  was  not  directly  con 
cerned  in  it.  In  January  of  the  following  year  two  of  these 

*  Ann.  17  Cong,  i  Sess.,  2318  et  seq.,  2374.          2  Ibid.,  2327. 


265]  ADMINISTRATIVE  WORK  IN  FLORIDA  gl 

officers  returned  to  Florida,  and  were  promptly  arrested  by 
Colonel  George  Walton,  Secretary  and  Acting  Governor  of 
West  Florida,  although  they  declared  that  they  had  not  re 
turned  in  defiance  of  the  proclamation,  but  had  come  to  ask 
permission  to  attend  to  the  settlement  of  their  private  affairs, 
and  that  they  were  ready  to  submit  to  any  order  which 
might  be  made  in  their  case.  The  calaboose  not  being  fit 
to  receive  them,  they  were  simply  confined  to  their  own 
houses  while  the  matter  was  reported  to  General  Jackson, 
and  through  him  to  Washington.  When  President  Monroe 
heard  of  the  situation  he  ordered  their  release.1 

II.  THE  HEIRS  OF  VIDAL  vs.  INNERARITY 

The  papers  which  had  caused  all  this  trouble  related  to 
the  case  of  the  Heirs  of  Vidal  vs.  Innerarity.  The  case 
arose  in  the  following  way: 

Nicholas  Maria  Vidal,  auditor  of  war,  died  in  Pensacola 
in  the  year  1806.  His  will  was  found  in  New  Orleans. 
This  document  directed  that  his  debts,  which  were  consider 
able,  should  first  be  paid,  after  which  any  residue  of  property 
should  fall  to  some  mulatto  women,  who  were  his  children. 
The  case  had  been  in  the  courts  ever  since  and  was  not  yet 
settled,  though  numerous  decrees  had  been  issued.  In 
August,  1821,  the  heirs  appeared  before  Governor  Jackson 
and  prayed  that  John  Innerarity,  who,  as  counsel  for  a 
firm  concerned  in  the  settlement,  had  been  possessed  of  some 
of  the  estate,  be  commanded  to  render  an  account  in  obe 
dience  to  a  decree  to  that  effect  issued  by  Governor  Cal- 
lava,  July  i,  1820.  At  the  same  time  they  expressed  the 
belief  that  he  was  about  to  withdraw  his  person  and  effects 
from  the  jurisdiction  of  Pensacola.  The  chief  claimant, 

1  Ann.  17  Cong,  i  Sess.,  2038  et  seq. 


g2  MILITARY  GOVERNMENT  [266 

Mercedes  Vidal,  affirmed  that  the  will  and  inventories  had 
been  missing  for  several  years  from  the  public  archives  of 
Pensacola,  that  she  had  made  repeated  applications  to  have 
them  restored,  and  that  this  was  finally  done  under  a  decree. 
That  just  before  the  change  of  sovereignty  she  had  de 
manded  them  of  Colonel  Callava,  but  that  he  refused,  say 
ing  that  he  must  take  them  to  Havana.1 

While  Governor  Jackson  was  aware  that  much  corrup 
tion  characterized  the  Spanish  judicial  proceedings,  he  was 
horrified  at  this  unparalleled  wickedness.  He  was  fully 
satisfied  that  Colonel  Callava  had  been  bribed  by  Innerar- 
ity.2  Such  oppression  must  not  be  tolerated,  and  the  papers 
were  sought,  with  the  result  already  described. 

The  case  was  now  called  up  before  Governor  Jackson, 
sitting  as  a  court  of  chancery.  Counsel  for  the  defendant 
entered  a  plea  of  want  of  jurisdiction,  because,  by  the 
Spanish  constitution,  the  judicial  authority  once  exercised 
by  the  governors  had  been  taken  from  them  and  vested  in 
other  officers.  In  rebuttal,  the  attorney  for  the  plaintiff  held 
that  the  powers  executed  by  the  officers  of  Spain,  not  the 
officers,  were  retained  by  the  act  of  Congress,  and  that  the 
President,  in  conformity  to  that  act,  had  made  an  entirely 
different  distribution  of  them.  The  Spanish  constitution 
was  not  in  force  in  Florida,  because  it  had  not  been  pro 
mulgated  until  Spain  had  parted  with  the  sovereignty  of 
the  territory.  Besides,  it  merely  provided  a  form  of  govern 
ment,  and  consequently  had  no  application  to  the  new  gov 
ernment.  An  examination  of  the  act  of  Congress  and  of 
the  governor's  commission  showed  that  the  President  had 
intended  to  give  him  the  same  powers  as  had  been  exercised 
by  Governor  Claiborne  in  Louisiana.  Under  the  Spanish 
constitution  the  governors  of  Florida  were  only  military 

1  Ann.  17  Cong,  i  Sess.,  2414,  2417,  2360.          *  Ibid.,  2298  et  seq. 


267]  ADMINISTRATIVE  WORK  IN  FLORIDA  83 

officers  under  the  captain-general  of  Cuba.  To  reduce  the 
governor  to  that  position  now  would  leave  the  country  with 
out  government  of  any  kind.1 

Counsel  for  plaintiff  was  sustained  by  Governor  Jack 
son,  who  said  that  the  plea  of  the  defendant  would  fall 
upon  proof  that  the  Spanish  constitution  was  not  in  force 
in  Florida.  This  he  then  endeavored  to  prove.  It  was  first 
promulgated  in  Spain,  said  he,  not  in  the  provinces,  by  the 
Cortes  in  1812,  while  Ferdinand  VII.  was  a  prisoner.  May 
4,  1814,  the  king,  who  had  returned  to  Spain,  annulled  all 
the  decrees  of  the  Cortes,  and  this  was  the  situation  when 
the  treaty  was  concluded,  February  22,  1819,  by  which 
Spain  parted  with  the  sovereignty  of  the  Floridas.  The 
ratification  was  delayed  two  years,  but  in  the  ratification, 
assented  to  by  the  Cortes,  it  was  provided  that  the  treaty 
should  have  the  same  effect  as  if  it  had  been  ratified  within 
the  time  originally  specified.  As  there  was  no  constitution 
in  existence  in  1819,  this  would  exclude  that  document  from 
the  Floridas.  Besides,  the  constitution  was  not  promul 
gated  in  Cuba  until  January,  1821,  and  if  ever  in  Florida, 
certainly  after  that  date,  more  than  three  months  2  after 
Spain  had  surrendered  the  sovereignty  of  Florida,  The 
plea  of  the  defendant,  therefore,  was  overruled,  and  he  was 
ordered  to  show  why  the  decree  of  the  late  Governor  Cal- 
lava,  by  which  he  had  been  ordered  to  render  to  the  heirs 
of  Vidal  an  account  of  how  the  estate  had  been  handled, 
should  not  be  carried  out.3 

The  defense  now  brought  forward  decrees  of  the  courts 
down  to  1810,  by  which  the  estate  was  supposed  to  have 

1  Ann.  17  Cong.  I  Sess.,  2328  et  seq. 

2  Presumably    referring    to    the    ratification    by    the    king    of    Spain, 
October  24,  1821. 

3  Ann.  17  Cong.  I   Sess.,  2332  et  seq.,  2416. 


84  MILITARY  GOVERNMENT  [268 

been  finally  settled,  leaving  it  indebted  to  the  defendant  for 
$i57-1  But  several  of  the  claims  made  therein  were  not 
allowed  by  this  court,  and  the  defendant  was  ordered  to 
pay  over  the  sum  of  $1,027.19  to  the  alcalde  within  thirty 
days.  The  alcalde  was  to  advertise  that  creditors  would  be 
allowed  sixty  days  in  which  to  file  their  claims,  after  which 
the  residue  should  be  turned  over  to  the  heirs  of  Vidal.2 

At  the  expiration  of  the  sixty  days,  the  counsel  for  de 
fense  endeavored  to  get  a  review  of  the  whole  case,  but 
Colonel  Walton,  Acting  Governor,  paid  no  attention  to  his 
plea,  but  gave  him  to  understand  that  the  money  must  be 
forthcoming  unless  he  wanted  to  go  to  prison.3 

III.  OPINIONS  AND  COUNTER-OPINIONS 

Several  questions  arose  in  connection  with  the  foregoing 
proceedings  which  deserve  further  notice.  Colonel  Cal- 
lava's  claim  to  the  disputed  papers  may  be  disposed  of  first. 

This  claim  was  based  on  the  fact  that  Vidal  was  in  the 
military  service.  For  that  reason  the  papers  fell  under  the 
military  court  and  captainship-general,  which,  by  the  evac 
uation  of  Florida,  had  resumed  the  authority  of  the  Spanish 
government  of  Pensacola.  Besides,  the  creditors  of  the 
estate  were  Spaniards,  and  the  right  of  presenting  their 
claim  in  the  proper  tribunals  could  not  be  denied  them.  So 
far  from  attempting  to  wrong  any  one,  he  had  ordered  the 
papers  to  be  given  to  the  mulatto,  that  she  might  make  a 
copy.4 

It  was  not  denied  that  the  property  involved  was  within 
the  jurisdiction  of  the  United  States,  and  that  the  claim 
ants  were  presumptive,  or  at  least  prospective,  citizens  of 
the  same.  To  say,  then,  that  the  estate  should  be  adminis- 

1  Ann.  17  Cong,  i  Sess.,  2476.  2  Ibid.,  2457. 

«  Ibid.,  2036.  *  Ibid.,  1969. 


269]  ADMINISTRATIVE  WORK  IN  FLORIDA  85 

tered  by  a  Spanish  court  for  the  benefit  of  Spanish  creditors 
was  a  claim  too  absurd  to  be  noticed. 

When  Mr.  Salmon,  Spanish  charge  d'affaires  at  Washing 
ton,  heard  of  the  treatment  meted  out  to  Colonel  Callava,  he 
at  once  lodged  a  protest  with  Secretary  Adams.  In  every 
way,  he  declared,  the  proceedings  o-f  General  Jackson  were 
irregular,  illegal,  unconstitutional,  and  violent.  Both  the 
American  and  Spanish  constitutions,  which  guaranteed  to 
every  individual  his  property  and  person,  had  been  violated  in 
the  informal  process  and  inhuman  execution  of  the  decrees 
relating  to  Colonel  Callava,  even  when  he  was  regarded  as 
a  private  individual.  But  he  was,  in  fact,  a  commissioner 
of  his  Catholic  Majesty  for  carrying  into  effect  the  treaty, 
and  as  such  was  under  the  protection  of  the  law  of  nations.1 

The  reply  of  Secretary  Adams  was  marked  by  the  vigor 
usually  found  in  his  state  papers.  Colonel  Callava' s  claim 
to  exemption  as  a  commissioner  was  inadmissible.  The 
treaty  provided  that  the  surrender  should  be  made  and  the 
evacuation  accomplished  in  six  months.  The  surrender  had 
been  made  and  the  six  months  had  passed.  Spanish  officers 
who  remained  after  that  date  were  there  on  sufferance,  and 
were,  according  to  the  Spanish  laws  existing  before  the 
cession,  liable  to  removal  or  imprisonment,  at  the  discretion 
of  the  governor,  for  the  mere  fact  of  being  there.  Colonel 
Callava's  act  was  an  undisguised  effort  to  prostrate  the 
authority  of  the  United  States  in  the  province;  Governor 
Jackson  had  to  pursue  the  course  adopted,  or  else  see  the 
sovereign  power  of  his  country  trampled  under  foot  and 
exposed  to  derision  by  a  foreigner  remaining  there  only 
upon  his  sufferance.2 

The  expulsion  of  the  Spanish  officers  called  forth  another 

1  Ann.  17  Cong,  i  Sess.,  1959  et  seq.,  2010. 

2  Ibid.,  2006,  2045. 


86  MILITARY  GOVERNMENT  [270 

note  from  Mr.  Salmon.  He  maintained  that  General  Jack 
son's  charges  were  false  and  that  the  expulsion  disregarded 
the  laws,  and  also  the  respect  due  to  a  friendly  power.1 

The  secretary's  reply  was  not  less  pointed  than  polite. 
The  charge  of  falsity  he  hoped  had  been  admitted  inad 
vertently  to  the  communication  he  had  received.  The  offi 
cers  ought  to  have  departed  in  accordance  with  the  pro 
visions  of  the  treaty;  having  remained  they  were  subject 
to  removal,  even  if  guilty  of  no  offense  whatever.  Simple 
expulsion  was  the  most  lenient  penalty  General  Jackson 
could  inflict  for  the  offense  o>f  which  they  were  guilty.2 

When  Judge  Fromentin  learned  that  Governor  Jackson 
had  used  the  word  apology  in  connection  with  the  state 
ment  he  had  signed  in  regard  to  the  issuance  of  the  writ, 
a  breezy  correspondence  ensued  between  them,  the  gist  of 
which  was :  "  I  didn't."  "  You  did."  "  I  did."  "  You 
didn't."  Both  then  poured  their  troubles  into  the  ear  of 
the  Secretary  of  State. 

From  the  very  first  they  had  disagreed  as  to  the  extent 
of  the  judge's  jurisdiction.  Governor  Jackson  held  that 
Judge  Fromentin  was  limited  to  cases  arising  under  the 
two  laws  of  the  United  States  which  had  been  extended 
to  the  territory,  those  relating  to  revenue  and  the  impor 
tation  of  slaves.  The  judge  himself  maintained  that  he  was 
a  territorial  judge,  with  the  additional  jurisdiction  vested 
by  the  act  of  March  3,  1805,  in  such  judges  where  no  dis 
trict  court  of  the  United  States  had  been  established.  He 
was  confirmed  in  this  opinion  by  an  examination  of  his 
commission,  in  which  he  was  styled  a  "  judge  of  the  United 
States  for  West  Florida,  with  power  to  execute  and  fulfil 
the  duties  of  that  office  according  to  the  Constitution  and 

1  Ann.   17  Cong.   I    Sess.,  2009  et  seq.  2  Ibid.,  2049. 


271]  ADMINISTRATIVE  WORK  IN  FLORIDA  87 

laws  of  the  United  States,"  and  by  a  sentence  in  the  Secre 
tary's  letter  transmitting  the  commission,  in  which  he  said 
that  it  might  be  important  to  have  the  judicial  department 
of  the  temporary  government  under  General  Jackson  put 
into  operation  immediately.1  But  the  governor  had  fore 
stalled  him,  and  had  the  judiciary  in  operation  when  Judge 
Fromentin  arrived.  While  he  was  waiting  to  hear  from 
Secretary  Adams,  the  troubles  recited  above  occurred.  The 
question  of  jurisdiction  was  now  overshadowed  by  that  of 
the  judge's  right  to  issue  the  writs  of  habeas  corpus. 

Governor  Jackson  did  not  trouble  himself  to  enter  upon 
any  arguments  respecting  the  judge's  right.  With  his  in 
terpretation  of  the  judge's  jurisdiction  it  was  assumed  that 
the  right  to  issue  the  writ  fell  to  the  ground.  The  irregular 
way  in  which  the  writ  had  been  issued  was,  he  declared, 
enough  to  strike  him  forever  from  the  roll  of  judges,  un 
less  ignorance  of  the  law  was  no  bar  to  judicial  station.2 

A  considerable  part  of  the  judge's  letters  was  taken  up 
with  a  denial  that  he  had  ever  apologized  to  Governor  Jack 
son.  The  spectacle  of  the  courts  set  up  by  the  governor  de 
ciding — not  trying — cases  every  day,  coram  non  judice,  and 
the  governor  himself  engaged  in  the  same  business,  all  of 
which  the  judge  considered  without  a  shadow  of  legality, 
fairly  set  his  blood  to  boiling.  He  waxed  eloquent  over 
the  "  revolting  system  of  inquisition  "  which  prevailed  there, 
and  declared  the  despotism  of  Morocco1  and  Algiers  to  be 
preferable  to  the  existing  government  in  Florida.  When 
Secretary  Adams  sustained  Governor  Jackson's  interpreta 
tion  of  the  judge's  jurisdiction — nothing  was  said  about 
the  right  to  issue  the  writ  of  habeas  corpus — the  excitable 
Frenchman  went  into  hysterics,  and  delivered  himself  of  a 
lengthy  "  exposition,"  setting  forth  the  reasons  for  his  view 

1  Ann.  17  Cong,  i  Sess.,  2374  et  seq.          2  Ibid.,  2300,  2340. 


88  MILITARY  GOVERNMENT  [272 

of  the  situation,  and  still  declaring  that  he  would  continue 
to  consider  himself  the  only  judge  in  Pensacola.  The 
thought  that  he  was  to  be  denied  the  right  to  issue  the 
writ  o-f  habeas  corpus  seemed  unendurable  and  drew  from 
him  an  apostrophe  to  liberty.  The  people  of  Florida  had 
been  stripped  of  their  liberty  and  subjected  to  Jacksonian- 
ism,  a  term  which  henceforth  would  be  more  odious  than 
ever  tyrant  had  been.  But  he  would  not  tamely  submit. 
If  not  allowed  to  introduce  the  habeas  corpus,  that  "  legit 
imate  knight  of  American  liberty,"  under  the  protection  of 
the  Constitution  of  the  United  States,  he  would  introduce 
it  under  that  of  Spain.  Fleeter e  si  nequeo  superb os,  Ache- 
ronta  movebo.'1 

The  judge's  claim  that  he  was  a  territorial  judge,  in 
opposition  to  the  views  of  President  Monroe  and  Secretary 
Adams,  who  issued  his  commission,  merits  but  little  atten 
tion.  By  his  commission  he  was  denominated  a  "  judge  of 
the  United  States  for  West  Florida,"  with  power  to  execute 
the  same  "  according  to  the  Constitution  and  laws  of  the 
United  States."  This  does  not  look  much  like  the  com 
mission  of  a  territorial  judge.  Indeed,  it  would  be  difficult 
to  say  what  it  does  look  like.  It  is  immaterial  to  inquire 
whether  he  had  the  same  right  to  issue  the  writ  of  habeas 
corpus  as  belonged  to  the  district  courts  of  the  United 
States,  conferred  upon  them  by  name  in  the  statutes  creat 
ing  them,  for,  in  any  case,  he  had  no  right  to  issue  it 
against  Judge  Jackson  in  a  case  in  which  the  United  States 
was  not  concerned. 

However,  in  palliation  of  Judge  Fromentin's  conduct,  it 
may  be  said  that  the  last  sentence  in  Secretary  Adams's 
letter  transmitting  the  commission  was  a  little  confusing: 
"  Towards  the  organization  of  the  temporary  government 

1  Ann.  17  Cong.  I  Sess.,  2400,  2463  et  seq. 


ADMINISTRATIVE  WORK  IN  FLORIDA  89 

under  his  [Jackson's]  direction,  it  may  be  important  that 
the  judiciary  department  should  be  put  into  operation  imme 
diately/'  But  a  "  judge  of  the  United  States  "  can  have 
nothing  to  do  with  the  judiciary  of  a  territory. 

Governor  Jackson's  misstatement  of  fact  in  regard  to  the 
promulgation  of  the  Spanish  constitution  gave  Judge  Fro- 
mentin  an  opportunity  to  excoriate  him  unmercifully.  The 
judge  declared  that  he  held  in  his  hand  an  official  copy  of 
the  oath  administered  to  Governor  Callava,  May  26,  1820, 
when  the  constitution  was  promulgated  at  Pensacola.  Many 
citizens  were  ready  at  the  trial  to  testify  that  this  had  been 
done  in  the  midst  of  rejoicings  and  illuminations  lasting 
several  days,  but  every  application  for  such  testimony  had 
been  overruled.  General  Jackson,  then,  in  Fromentin's 
opinion,  had  deliberately  stated  a  falsehood.1 

The  line  of  reasoning  by  which  the  general  satisfied  him 
self  that  the  Spanish  constitution  was  not  in  force  in  Florida 
was  more  worthy  of  a  Greek  sophist  than  of  an  American 
statesman  or  general.  That  a  sovereign  cannot  legislate 
for  territory  ceded  by  a  treaty  signed,  but  not  ratified  and 
exchanged,  is  a  proposition  too  absurd  to  be  discussed.3 
It  probably  would  not  have  occurred  to  anybody  else  that 
that  clause  in  the  ratification  which  provided  that  the  treaty 
should  have  the  same  effect  as  if  it  had  been  ratified  within 
the  time  originally  specified,  was  meant  to  annul  all  laws 
passed  for  the  regulation  of  the  territory  since  February 
22,  1819.  The  argument  adopted  by  counsel  for  the  heirs 
of  Vidal — that  the  powers  of  the  existing  government  had 
been  retained,  not  the  officers'  (meaning  offices),  of  which 
a  new  distribution  had  been  made — would  have  justified 
the  governor  in  sitting  as  a  judge  but  for  the  fatal  wording 
of  his  commission,  by  which  he  was  limited  to  the  powers 

1  Ann.   17  Cong.   I    Sess.,  2410.  z  Ibid.,  2027. 


90  MILITARY  GOVERNMENT  [274 

and  authorities  exercised  by  the  governor  and  captain- 
general  and  intendant  of  Cuba,  and  by  the  governors  of 
East  and  West  Florida.  The  only  reasonable  interpreta 
tion  of  this  is  that  it  meant  the  powers  exercised  at  the  time 
of  the  transfer.  Now  the  governor's  own  alcalde,  Mr. 
Brackenridge,  had  informed  him  that  the  only  judicial 
power  exercised  by  the  governor  since  the  promulgation  of 
the  constitution  related  to  admiralty.  A  legal  justification, 
then,  of  the  governor's  judicial  proceedings  seems  to  be 
wanting.  Nor  does  the  necessity  for  them  appear  to  have 
been  imperative.  He  had  already  organized  some  courts; 
if  they  were  inadequate,  why  not  others?  The  constitution 
appears  to  have  left  the  direction  as  to  how  these  should  be 
organized  to  the  Cortes.  The  law  of  that  body  on  the  sub 
ject  is  not  known  to  the  writer,  but  it  must  have  been  com 
petent  for  the  governor  to  bring  about  their  organization 
in  some  way,  probably  by  election  on  Sunday,  after  high 
mass,  as  in  the  other  elective  offices. 

The  conduct  of  General  Jackson  in  Florida  attracted  the 
attention  of  Congress,  and  the  House  of  Representatives, 
after  a  considerable  debate,  which  trenched  upon  the  merits 
of  the  case,  called  upon  the  President  for  information  in 
regard  to  it.  When  the  correspondence  was  received  it 
was  laid  on  the  table  and  ordered  to  be  printed.  A  series 
of  resolutions  arraigning  the  general  administration  of 
Florida  and  declaring  the  treatment  of  Colonel  Callava  to 
have  violated  the  laws  of  nations,  and  that  of  Judge  Fro- 
mentin  a  proceeding  not  warranted  by  any  legal  authority, 
was  refused  consideration.1 

The  country,  says  Parton,2  judged  the  governor  leniently, 
though  some  papers  were  severe  in  their  criticism.  Parton 
himself  is  a  little  severe,  but  he  lays  the  blame  on  old 

1  Ann.  17  Cong,  i  Sess.,  610  et  seq.;  627,  1195.        2  Jackson,  ii,  642. 


275]  ADMINISTRATIVE  WORK  IN  FLORIDA  91 

prejudice  (against  the  Spanish),  and  chronic  diarrhoea, 
which  made  the  general  irritable.  "  Nevertheless,  after 
giving  due  weight  to  these  extenuating  circumstances,  many 
readers  will  feel  that  General  Jackson's  treatment  of  Sousa, 
Callava,  and  Fromentin  was  only  saved  from  being  atrocious 
by  being  ridiculous." 

IV.  EAST  FLORIDA  AND  OTHER  AFFAIRS 

The  question  of  religious  toleration  appears  to  have  been 
the  first  one  to  present  itself  in  East  Florida,  but  it  was  settled 
without  so  much  as  an  appeal  to  the  officials.  Hardly  had 
the  substitution  of  flags  been  effected  when  a  Methodist 
minister  appeared  and  began  to  distribute  Protestant  tracts. 
This  called  forth  an  indignant  protest  from  a  Catholic 
priest,  but  when  the  preacher  pointed  to  the  American  flag 
the  priest  retired  in  dismay.1 

While  Captain  Bell  was  acting-governor  he  "  found  it 
necessary,  in  the  absolute  want  of  all  law  regulation,  police 
or  magistracy,  to  exercise  his  authority,  upon  the  occurrence 
of  some  peculiar  circumstances  respecting  the  carrying  off 
of  slaves,  to  confine  for  a  very  short  time  one  o>f  the  citizens 
in  the  fort  of  Saint  Augustine."  2  In  doing  this  the  cap 
tain  said  that  he  did  not  deem  it  necessary  to  ascertain  with 
legal  precision  whether  his  powers  were  to  be  measured  by 
the  limits  imposed  by  the  old  or  new  constitution  of  Spain, 
but  that  the  good  of  all,  the  peace  of  the  whole  community, 
was  his  only  rule  of  conduct.  This  occurred  only  a  few 
days  after  the  transfer  of  sovereignty.  The  extent  to  which 
the  civil  power  was  allowed  to  supersede  the  military,  even 
before  the  organization  of  the  territorial  government  under 
the  act  of  Congress,  is  illustrated  by  the  fact  that  in  about 

1  Parton,  Jackson,  ii,  6081. 

2  Vignoles,   Observations  upon  the  Florida*   (1823),  30. 


92  MILITARY  GOVERNMENT  [276 

five  months  damages  were  awarded  against  Captain  Bell 
by  the  county  court,  and  that  its  decision  was  acquiesced  in. 
However,  the  "  inhabitants  and  proprietors  "  of  St.  Augus 
tine  raised  the  amount  of  the  fine,  and  begged  of  Captain 
Bell  the  privilege  of  paying  it  as  a  testimonial  of  their 
esteem  and  their  unshaken  belief  in  the  uprightness  of 
his  conduct.1 

Mention  has  already  been  made  of  the  fact  that  the 
archives  were  left  in  the  hands  of  the  Spanish.  When  Mr. 
Worthington  arrived  he  deemed  the  immediate  possession 
of  these  papers  of  sufficient  importance  to  demand  their  de 
livery,  according  to  the  terms  of  the  treaty.  They  were  in 
the  hands  of  a  Mr.  Entralgo,  the  Spanish  alcalde,  who 
continued  to  exercise  the  functions  of  that  office  and  re 
ceive  the  fees,  although  he  had  refused  to  take  the  oath 
of  allegiance  to  the  United  States.  Secretary  Worth 
ington  now  appointed  Mr.  Edmund  Law  to  be  alcalde, 
and  demanded  possession  of  the  archives  and  office.  This 
Mr.  Entralgo  refused,  saying  that  they  were  his  private 
property,  as  he  had  bought  them  at  a  public  sale,  and  that 
he  would  not  part  with  them  until  satisfactorily  indemnified. 
The  secretary  replied  that  he  must  seek  indemnification 
from  the  government  which  had  sold  him  the  office.  Upon 
his  persistent  refusal,  the  secretary  sent  three  men  as  a  com 
mission,  with  authority  to  call  upon  the  military  for  help, 
to  seize  the  documents  in  question.  This  brought  about 
the  desired  result.2 

Captain  Bell,  the  president  of  the  commission,  reported 
that  the  conduct  of  the  officers  in  seizing  the  papers  was 
approved  by  citizens  having  property  in  East  Florida.3  In 
deed,  it  was  to  allay  their  uneasiness  that  the  prompt  action 

1  Vignoles,  Observations  upon  the  Floridas  (1823),  31  et  seq. 

2  Ann.  17  Cong.  I   Sess.,  2512  et  seq.  3  Ibid.,  2018  et  seq. 


277]  ADMINISTRATIVE  WORK  IN  FLORIDA  93 

was  taken,  for  many  feared  that  frauds  would  be  perpe 
trated  against  property  rights,  if  these  papers  were  allowed 
to  be  shipped  to  Havana. 

Governor  Jackson  approved  these  proceedings,  declar 
ing  that  "  nothing  could  be  more  absurd  than  that  Spanish 
officers,  as  such,  should  administer  the  government.  The 
true  meaning  [of  the  proclamation]  is,  that  whenever  the 
incumbent  will  take  the  oath  to  support  the  Constitution 
of  the  United  States,  and  abjure  that  of  Spain,  and  take 
the  oaths  of  office,  he  shall  continue  therein,"  subject,  how 
ever,  to  removal  at  any  time.1 

In  October  of  1821,  the  city  council  of  St.  Augustine  so 
far  exceeded  its  authority  in  levying  taxes  upon  the  inhab 
itants  that  Congress  took  notice  of  the  matter  and  annulled 
the  ordinance.2 

A  few  days  after  taking  possession  of  Pensacola,  Gover 
nor  Jackson  took  an  important  step  in  regard  to  the  sixth 
article  of  the  treaty.  It  was  nothing  else  than  to  prescribe 
the  manner  and  limit  the  time  in  which  the  inhabitants  were 
to  elect  their  citizenship.  Such  as  desired  to  become  Amer 
ican  citizens  were  ordered  to  appear  and  have  their  names 
enrolled  in  a  register  within  twelve  months,  after  which 
time  all  who  had  not  so  registered  were  to  be  considered 
as  foreigners.  The  keeper  of  the  register  was  allowed  to 
exact  one  dollar  for  every  name  recorded,  and  his  secretary 
another  dollar  for  every  certificate  of  citizenship  issued.* 
His  reasons  for  the  requirement  were:  (i)  For  the  con 
venience  of  such  as  desired  to  become  citizens  of  the  United 
States.  (2)  To  prevent  persons  from  claiming  both  the 
privileges  of  citizens  and  the  exemptions  of  foreigners,  as 
suited  their  convenience,  of  which  he  had  had  no  little  ex- 

1  Ann.  17  Cong.  I  Sess.,  2027.  2  Act  of  May  7,  1822. 

»  Ann.  17  Cong.  I  Sess.,  2550. 


94  MILITARY  GOVERNMENT  [278 

perience  in  Louisiana.  But  these  reasons  for  usurping- 
powers  expressly  delegated  to  Congress  in  prescribing  rules 
of  naturalization  do  not  appear  to  have  satisfied  that  body. 
May  7,  1822,  the  ordinance  was  annulled,  and  provision 
was  made  to  reimburse  any  who  had  suffered  in  conse 
quence  of  it. 

V.  DEPARTURE  OF  GOVERNOR  JACKSON.     EFFECTS  OF  His 
ADMINISTRATION 

In  a  few  weeks  Governor  Jackson  had  made  more  his 
tory  for  Pensacola  than  had  before  fallen  to  its  lot  in  years. 
His  administration  was  now  drawing  to  a  close.  In  obe 
dience  to  the  wish  of  Secretary  Adams,  he  transmitted  a 
report  conveying  such  information  as  he  thought  would 
serve  to  enlighten  Congress  in  legislating  for  the  territory. 
As  for  government,  he  recommended  an  organization  sim 
ilar  to  that  adopted  for  Louisiana.1 

And  now  Governor  Jackson,  who  had  accepted  the  posi 
tion  with  some  reluctance,2  disgusted  with  the  whole  busi 
ness,  and  with  health  considerably  impaired,  prepared 
to  return  to  his  home  in  Tennessee.  October  6,  he  sent  to 
the  Floridian  an  address  to  the  people  of  Florida  as  a  kind 
of  parting  message.  In  the  organization  and  execution  of 
the  present  temporary  government  he  had,  he  affirmed,  kept 
steadily  in  view  the  securing  to  the  inhabitants  the  protection 
of  their  persons,  property,  and  religion,  as  guaranteed  by  the 
treaty,  until  they  should  be  incorporated  into  the  Union  and 
become  entitled  to  all  the  privileges  and  immunities  of  citi 
zens  of  the  United  States.  In  performing  this  important  part 
of  his  functions  he  had  endeavored  to  observe  the  spirit  of 
our  political  institutions.  During  his  absence  Secretary 

1  Ann.  17  Cong,  i  Sess;,  2560. 

2  Monroe,  Message  of  December  3,  1821. 


279]  ADMINISTRATIVE  WORK  IN  FLORIDA  95 

Worthington  would  administer  the  affairs  of  East  Florida, 
and  Secretary  Walton  those  of  West  Florida,  subject  to 
instructions  from  the  President,  through  him.1 

The  next  day  the  governor  left  for  Nashville,  where  he 
arrived  November  5.  Shortly  after  this  his  resignation  was 
sent  in  and  accepted.  The  secretaries  were  left  in  charge, 
under  the  instructions  given  them  by  Governor  Jackson, 
until  Congress  should  make  further  provision.2 

Judge  Fromentin  thought  that  General  Jackson  wished 
to  exploit  the  offices  in  Florida  for  the  benefit  of  his  friends. 
Certain  letters  written  by  Mrs.  Jackson  while  at  Pensacola 
indicate  that  he  was  somewhat  vexed  at  not  being  able  to 
dispose  of  the  more  important  offices,  the  President  having 
made  the  appointments  in  Washington.  But,  in  any  event, 
it  cannot  be  charged  that  he  wished  or  attempted  to  exploit 
the  Floridians  simply  for  his  own  benefit,  or  that  of  his 
friends. 

The  ordinances  for  the  government  of  Pensacola  were 
reported  by  Mr.  Brackenridge,  a  few  days  after  their  pro 
mulgation,  to  have  been  productive  of  the  happiest  results. 
Peace,  quiet,  and  order  had  taken  the  place  of  continual 
disturbance  and  disorder.  The  military  force  was  almost 
entirely  dispensed  with  and  its  place  supplied  by  civil  offi 
cers.  Attention  to  the  health  and  comfort  of  the  city  had 
succeeded  the  total  neglect  with  which  these  important  con 
siderations  were  treated  for  months  before  the  change  of 
sovereignty.3  Mrs.  Jackson  was  so  annoyed  with  the  bois 
terous  way  in  which  the  Sunday  preceding  the  transfer  of 
sovereignty  was  kept  that  she  sent  Major  Stanton  to  warn 
the  people  that  the  next  would  be  differently  kept.  "  Yes- 

1  Niles,  xxi,  171  et  seq.  2  Ann.  17  Cong.  I  Sess.,  2039. 

3  Ann.  17  Cong.  I  Sess.,  2541. 


g6  MILITARY  GOVERNMENT  [28o 

terday  I  had  the  happiness  of  witnessing  the  truth  of  what 
I  had  said.  Great  order  was  observed ;  the  doors  kept  shut ; 
the  gambling-houses  demolished;  fiddling  and  dancing  not 
heard  any  more  on  the  Lord's  day;  cursing  not  to  be 
heard."  a 

This  same  lady  thought  the  change  of  sovereignty  not 
so  very  welcome  to  the  natives.  "  How  did  the  city  sit 
solitary  and  mourn!"  she  exclaims.  But  she  was  given  to 
reflection  and  introspection,  and  wrote  as  though  her  im 
pressions  were  received  from  gazing  out  of  a  window. 

The  Floridians  had  had  some  experience  with  General 
Jackson  as  a  conqueror  a  few  years  before.  This  fact, 
together  with  stories  which  they  had  heard  respecting  his 
character,  and  his  hatred  for  Spaniards  in  particular 
(which  he  denied),  caused  them  to  stand  somewhat  in  awe 
of  him.  This  was  illustrated  by  an  occurrence  which  hap 
pened  shortly  after  his  arrival  in  Pensacola.  One  night  a 
fire  broke  out,  and  the  Spaniards  rushed  out  to  witness  it, 
but  did  nothing.  When  General  Jackson  arrived  and  took 
in  the  situation  he  uttered  one  of  his  fiercest  yells  to  arouse 
them  to  action.  The  Spaniards,  however,  not  comprehend 
ing  the  phrase  employed,  and  having  received  impressions 
respecting  the  ferocity  of  his  disposition  which  rendered 
him  an  object  of  terror,  turned  and  fled,  leaving  him  the 
sole  spectator  of  the  fire  until  the  soldiers  arrived.2  His 
treatment  of  Colonel  Callava  and  Judge  Fromentin,  and  the 
expulsion  of  the  Spanish  officers,  aroused  some  fear  and 
excitement,  but  these  soon  subsided.  The  sense  of  humor 
must  have  prevailed  over  that  of  fear  in  the  manager  of 
the  theatre  who  headed  his  play-bills,  "  Jacksonian  Com 
monwealth."  3 

1  Parton,  Jackson,  ii,  604.  2  Ibid.,  613. 

8  Ann.  17  Cong.  I  Sess.,  2524,  2403. 


2g I ]  ADMINISTRATIVE  WORK  IN  FLORIDA  97 

VI.  THE  TERRITORIAL  GOVERNMENT  ORGANIZED 

After  the  departure  of  Governor  Jackson  the  secretaries 
seem  to  have  had  fairly  smooth  sailing.  The  House  of 
Representatives  again  grew  interested  in  their  work,  and 
asked  the  President  "  whether  that  portion  of  the  United 
States  army  now  in  Florida  is  commanded  by  the  officers 
of  the  said  army,  or  by  the  secretaries  of  the  territory; 
and  if  by  the  latter,  by  what  authority  he  is  invested  with 
such  command."  In  reply  President  Monroe  said: 

.  .  .  The  secretaries  of  both  the  Territories  have  occasion 
ally  required  and  received  the  aid  of  the  military  force  of 
the  United  States,  stationed  within  them,  respectively,  to  carry 
into  effect  the  acts  of  their  authority. 

The  government  of  East  and  West  Florida  was,  under  the 
Spanish  dominion,  almost  exclusively  military;  the  governors 
of  both  were  military  officers,  and  united  in  their  persons  the 
chief  authority,  both  civil  and  military. 

[The  principle  upon  which  the  act  for  the  temporary  gov 
ernment  of  our  new  territory  was  carried  into  effect]  was  to 
leave  the  authorities  of  the  country,  as  they  were  found  exist 
ing  at  the  time  of  the  cession,  to  be  exercised  until  the  meet 
ing  of  Congress,  when  it  was  known  that  the  introduction  of  a 
system,  more  congenial  to  our  own  institutions,  would  be  one  of 
the  earliest  and  most  important  subjects  of  their  deliberations. 
From  this,  among  other  obvious  considerations,  military  offi 
cers  were  appointed  to  take  possession  of  both  Provinces. 
But,  as  the  military  command  of  General  Jackson  was  to 
cease  on  the  1st  of  June,  General  Gaines  .  .  .  received  from 
me  verbal  directions  to  give  such  effect  to  any  requisition 
from  the  Governor  for  military  aid,  to  enforce  his  authority, 
as  the  circumstances  might  require. 

The  President  furthed  explained  that  the  secretaries  had 
no  authority  to  command  the  troops,  and  that  whatever  aid 


gg  MILITARY  GOVERNMENT  [282 

had  been  required  by  them  had  been  secured  by  written 
requisitions  to  the  commanding  officers.  Colonel  Brooks 
had  written  to  know  how  far  these  requisitions  were  to  be 
considered  authoritative,1  but  the  near  approach  of  the  re 
organization  of  the  government  was  considered  a  sufficient 
reason  for  giving  no  specific  reply.2 

The  act  for  the  organization  of  the  territorial  govern 
ment  became  a  law  March  30,  1822.  William  P.  Duvall, 
then  "  Judge  of  the  United  States  for  East  Florida,"  was 
immediately  commissioned  governor  of  the  new  territory,8 
and  with  the  organization  of  the  new  government  under 
him  in  July,  the  quasi-military  government  came  to  an  end.* 

1  This  officer  had  sided  with  Callava  in  his  trouble  with  Governor 
Jackson. 

2  Message  of  April  5,  1822. 

»  Niles,  xxii,  132.  4  Niles,  xxiii,  23. 


BOOK  II 

MILITARY  GOVERNMENT  IN  NEW  MEXICO 
AND  CALIFORNIA 


CHAPTER  I 
THE  OCCUPATION  OF  NEW  MEXICO 

I.  THE  CONQUEST  AND  REORGANIZATION 

MAY  13,  1846,  the  Congress  of  the  United  States  de 
clared  that  war  existed  with  Mexico  "  by  her  own  act." 
June  4,  Mr.  W.  L.  Marcy,  Secretary  of  War,  sent  copies 
of  a  proclamation  to  General  Taylor,  who  was  already  on 
the  border,  to  be  used  by  him  according  to  his  judgment. 
This  proclamation  assured  the  Mexicans  that  the  United 
States  only  sought  indemnity  for  past  injuries  and  security 
for  the  future;  that  their  purpose  was  not  to  make  war  on 
the  people,  but  to  liberate  them  from  the  tyrants  who  had 
usurped  their  government  and  destroyed  their  liberties. 
Nothing  would  be  demanded  of  them  except  food  for  the 
army,  which  would  be  paid  for  in  cash  at  full  value.  Such 
as  remained  neutral  should  be  protected  by  the  republican 
army  of  the  Union.1 

The  instructions  to  Brigadier-General  Kearny  for  the 
conquest  of  New  Mexico  and  California  were  in  keeping 
with  the  determination  of  the  administration  to  obtain  the 
"  indemnity  and  security  "  just  mentioned  by  taking  per 
manent  possession  of  those  dominions.  His  orders,  dated 
June  3,  ran: 

Should  you  conquer  and  take  possession  of  New  Mexico 
and  Upper  California,  or  considerable  places  in  either,  you 

1  H.  Ex.  Doc.  29  Cong.  2  Sess.,  no.  19,  pp.  17  et  seq. 
285]  ioi 


I02  MILITARY  GOVERNMENT  [286 

will  establish  temporary  civil  governments  therein — abolish 
ing  all  arbitrary  restrictions  that  may  exist,  so  far  as  it  may 
be  done  with  safety.  In  performing  this  duty  it  would  be  wise 
and  prudent  to  continue  in  their  employment  all  such  of  the 
existing  officers  as  are  known  to  be  friendly  to  the  United 
States,  and  will  take  the  oath  of  allegiance  to  them.  The 
duties  at  the  custom-houses  ought,  at  once,  to  be  reduced  to 
such  a  rate  as  may  be  barely  sufficient  to  maintain  the  neces 
sary  officers  without  yielding  any  revenue  to  the  government. 
You  may  assure  the  people  of  those  provinces  that  it  is  the 
wish  and  design  of  the  United  States  to  provide  for  them  a 
free  government,  with  the  least  possible  delay,  similar  to  that 
which  exists  in  our  Territories.  They  will  then  be  called  on 
to  exercise  the  rights  of  freemen  in  electing  their  own  repre 
sentatives  to  the  territorial  legislature.  It  is  foreseen  that 
what  relates  to  the  civil  government  will  be  a  difficult  and 
unpleasant  part  of  your  duty,  and  much  must  necessarily  be 
left  to  your  own  discretion. 

In  your  whole  conduct  you  will  act  in  such  a  manner  as 
best  to  conciliate  the  inhabitants,  and  render  them  friendly 
to  the  United  States. 

It  is  desirable  that  the  usual  trade  between  the  citizens  of 
the  United  States  and  the  Mexican  provinces  should  be  con 
tinued,  as  far  as  practicable,  under  the  changed  conditions  of 
things  between  the  two  countries 1 

Similar  instructions  were  sent  to  the  naval  commander. 
Copies  of  the  proclamation  sent  to  General  Taylor  were 
given  to  General  Kearny  also,  but  the  next  day  he  was  re 
quested  not  to,  use  them  in  New  Mexico  and  California,  as 
parts  of  the '  proclamation  would  not  "  answer  our  pur 
pose"  in  those  countries.2 

Such  were  the  preliminaries  to  General  Kearny's  march 
of  conquest.  August  2,  he  sent  Captain  Cooke  in  advance 

1  H.  Ex.  Doc.  29  Cong.  2  Sess.,  no.  19,  p.  6.  2  Ibid.,  18,  81. 


287] 


THE  OCCUPATION  OF  NEW  MEXICO 


to  Santa  Fe  with  a  flag  of  truce  to  proclaim  the  purpose 
of  his  coming.1  August  15,  the  general  reached  Las  Vegas, 
where  he  explained  to  the  people  the  object  of  the  invasion, 
and  assured  them  of  protection  in  life  and  property  so  long 
as  they  remained  quiet  and  peaceable.  The  alcalde,  on 
taking  the  oath  of  allegiance  to  the  United  States,  was 
confirmed  in  his  office.  At  Tecolete  similar  proceedings 
were  gone  through  with  while  the  horses  were  being  wat 
ered,  and  again  at  San  Miguel.  Exaggerated  reports  of 
General  Kearny's  strength  caused  the  Mexican  governor, 
Armijo,  with  about  four  thousand  men,  to  retreat,  and  the 
Americans  entered  Santa  Fe  August  18,  without  opposition. 
The  formal  transfer  of  the  city  government  was  effected 
at  the  Palace,  where  the  lieutenant-governor,  Juan  Bautista 
Vigil,  met  General  Kearny  for  that  purpose.  The  next  day 
the  American  general  assembled  the  people  in  the  plaza  and 
gave  them  some  assurances  through  an  interpreter.  August 
22,  he  issued  a  proclamation  of  a  somewhat  remarkable 
tenor.  It  recited  that  he  came  with  instructions  to  respect 
the  religious  institutions  of  New  Mexico,  and  to  protect 
the  persons  and  property  of  all  quiet  and  peaceable  inhabi 
tants  against  their  enemies,  the  Eutaws,  the  Navajos,  and 
others.  It  continued: 

And  he  requires  of  those  who  have  left  their  homes  and 
taken  up  arms  against  the  troops  of  the  United  States  to 
return  forthwith  to  them,  or  else  they  will  be  considered  as 
enemies  and  traitors,  subjecting  their  persons  to  punishment, 
and  their  property  to  seizure  and  confiscation  for  the  benefit 
of  the  public  treasury. 

It  is  the  wish  and  intention  of  the  United  States  to  pro 
vide  for  New  Mexico  a  free  government,  with  the  least  pos 
sible  delay,  similar  to  that  in  the  United  States;  and  the 

1  Prince,  Hist.  N.  Mex.,  290  et  seq. 


MILITARY  GOVERNMENT  [2g8 

people  of  New  Mexico  will  then  be  called  on  to  exercise  the 
rights  of  freemen  in  electing  their  own  representatives  to  the 
Territorial  legislature.  But  until  this  can  be  done,  the  laws 
hitherto  in  existence  will  be  continued  until  changed  or  mod 
ified  by  competent  authority ;  and  those  persons  holding  office 
will  continue  in  the  same  for  the  present,  provided  they  will 
consider  themselves  good  citizens  and  are  willing  to  take  the 
oath  of  allegiance  to  the  United  States. 

The  United  States  hereby  absolves  all  persons  residing 
within  the  boundaries  of  New  Mexico  from  any  further  alle 
giance  to  the  republic  of  Mexico,  and  hereby  claims  them  as 
citizens  of  the  United  States.  Those  who  remain  quiet  and 
peaceable  will  be  considered  good  citizens  and  receive  pro 
tection  ;  those  who  are  found  in  arms,  or  instigating  others 
against  the  United  States,  will  be  considered  as  traitors,  and 
treated  accordingly. 

Don  Manuel  Armijo,  the  late  governor  of  this  department, 
has  fled  from  it;  ...  for  the  present  the  undersigned  will 
be  considered  as  governor  of  the  Territory.1 

In  a  few  days  the  new  governor  began  to  exercise  his 
functions  by  repealing  the  law  which  required  the  use  of 
stamped  paper,  by  fixing  the  cost  of  licenses  for  stores,  tav 
erns,  balls,  etc.,  and  by  laying  duties  on  wagons,  the  revenue 
from  which  licenses  and  duties  was  to  accrue  to  the  city. 
The  treasurer  and  collector  having  become  incapacitated,  the 
former  through  sickness,  the  latter  through  deafness,  were 
removed  and  their  places  supplied  by  new  appointments.  He 
then,  "  being  duly  authorized  by  the  President  of  the  United 
States,"  proceeded  to  organize  a  civil  government  by  the 
appointment  of  a  full  list  of  officers,  and,  September  22, 
1846,  proclaimed  the  same,  together  with  an  "Organic  Law 
of  the  Territory,"  from  the  old  Adobe  Palace. 

1  H.  Ex.  Doc.  29  C.  2  S.,  no.  19,  pp.  20  et  seq. 


289]  THE  OCCUPATION  OF  NEW  MEXICO  105 

The  document  just  mentioned  began :  "  The  government 
of  the  United  States  of  America  ordains  and  establishes 
the  following  organic  law  for  the  Territory  of  New  Mexico, 
which  has  become  a  Territory  of  the  said  government." 
Then  followed  a  transcript  of  the  Organic  Law  provided 
by  Congress  for  the  Missouri  Territory.  After  this  came 
forty  pages  of  laws  for  the  government  of  the  territory. 
These  were  compiled  b'y  Colonel  A.  W.  Doniphan  and  a 
private,  Mr.  W.  P.  Hall,  who  received  notice  of  his  election 
to  Congress  from  Missouri  while  engaged  on  the  work. 
The  compilation  was  made  from  the  laws  of  Mexico,  modi 
fied  to  confo'irn  to  the  Constitution  of  the  United  States, 
and  from  the  laws  of  Missouri,  Texas,  and  Coahuila,  the 
statutes  of  Missouri,  and  the  rest  from  the  Livingston 
Code.  These,  among  other  things,  defined  crimes  and  fixed 
their  punishment,  provided  for  the  administration  of  justice, 
with  trial  by  jury,  prescribed  the  fees,  and  introduced  the 
habeas  corpus.  Nearly  three  pages  were  devoted  to  revenue 
regulations.  An  election  was  to  be  held  on  the  first  Monday 
in  August,  1847,  f°r  a  delegate  to  Congress,  and  for 
members  of  the  general  assembly.1 

Meanwhile  the  executive  and  judicial  officers  were  ap 
pointed  and  entered  upon  the  discharge  of  their  duties. 
The  governor,  secretary  of  state,  the  judges  of  the  supreme 
court  (three),  the  United  States  attorney  and  marshal, 
eight  prefects,  the  speaker  of  the  assembly,  and  the  mem 
bers  of  the  legislature  (twenty-one)  were  to  be  paid  by  the 
United  States;  the  auditor,  treasurer,  attorney-general,  and 
two  district  attorneys  were  to  receive  one-half  of  their  sala 
ries  from  the  United  States  and  the  other  half  from  the 
territory. 

1  H.  Ex.  Doc.  29  C.  2  S.,  no.   19,  p.  26  ct  scq. 


I06  MILITARY  GOVERNMENT  [290 

II.  THE  CONQUEST  IN  CONGRESS.  ACTS  OF  THE  CON 
QUEROR  REVIEWED. 

When  the  news  of  General  Kearny's  high-handed  pro 
ceedings  was  received  in  Washington,  General  Scott  wrote 
him  (November  8)  a  letter  of  commendation,  with  further 
instructions  regarding  operations  in  California.  This  letter 
contained  one  paragraph  which  might  have  been  construed 
as  disapprobation :  "  As  a  guide  to  the  civil  governor  of 
Upper  California,  in  our  hands,  see  the  letter  of  June  the 
3d  (last)  addressed  to  you  by  the  Secretary  of  War.  You 
will  not,  however,  formally  declare  the  province  to  be 
annexed.  Permanent  incorporation  of  the  territory  must 
depend  on  the  government  of  the  United  States."  * 

In  his  annual  message  (December  8),  President  Polk  said 
that  the  right  of  a  belligerent,  recognized  in  the  laws  of 
nations,  to  govern  conquered  territory  during  his  military 
occupation  had  been  exercised  by  our  military  and  naval 
commanders  in  "  the  establishment  of  temporary  govern 
ments  in  some  of  the  conquered  provinces  of  Mexico,  assim 
ilating  them,  as  far  as  practicable,  to  the  free  institutions 
of  our  own  country." 

As  soon  as  the  motion  to  print  the  message  had  been  dis 
posed  of,  Mr.  Garrett  Davis,  of  Kentucky,  rose  and  ob 
served  that  there  was  one  point  in  the  message  which  he 
did  not  consider  sufficiently  explicit.  He  then  asked  leave 
to  introduce  a  resolution  calling  upon  the  President 
for  copies  of  all  orders  and  instructions  given  to  the  mili 
tary  and  naval  officers  in  relation  to  the  establishment  or 
organization  of  civil  governments  in  any  portion  of  the 
territory  of  Mexico  which  had  been,  or  might  be,  taken 
possession  of  by  our  forces;  also  for  information  as  to 
what  forms  of  government  such  officers  had  established, 

1  H.  Ex.  Doc.,  29  C.  2  S.,  no.  19,  p.  14  et  seq. 


291]  THE  OCCUPATION  OF  NEW  MEXICO 

and  as  to  whether  the  President  had  approved  and  recog 
nized  said  governments.1 

Nobody  appears  to  have  had  any  special  objection  to  the 
motion,  but  a  spirited  debate  at  once  arose  on  it  and  lasted 
nearly  two  days.  The  speeches,  some  hysterical,  some 
angry,  some  a  bit  humorous  and  sarcastic,  included  a  great 
variety  of  subjects,  ranging  from  the  boundary  of  Texas 
and  the  right  of  annexation  by  treaty,  by  joint  resolution, 
and  by  proclamation,  to  the  powers  of  the  President  under 
the  Constitution  and  the  laws  of  nations.  The  last  ques 
tion  was  so  mixed  up-  with  that  of  annexation  and  natural 
ization  by  the  act  of  a  commanding  general  that  it  is  a  little 
hard  to  get  at  the  real  merits  of  the  debate. 

Mr.  Davis  started  off  with  pyrotechnics.  What!  Was 
our  American  President  an  emperor,  sending  forth  his 
Agrippa  and  Marcellus  as  his  proconsuls  to  conquer  and 
govern  by  force  of  arms?  Was  he,  an  officer  deriving  his 
breath  and  being  from  the  Constitution,  to  authorize  his 
satraps  and  tetrarchs  to  set  up  governments  and  make  laws 
at  their  pleasure?  The  country  should  be  informed  whether 
these  things  had  been  done  with  his  sanction.  Some  had 
spoken  of  the  government  as  military.  Would  any  one 
refer  him  to  a  book  of  established  authority  which  declared 
that  the  President  might  establish  a  temporary  government 
in  a  conquered  province  while  holding  it  in  military  occu 
pation  pending  a  treaty  on  the  subject  of  boundary? 

Mr.  Douglass,  of  Illinois,  saw  no  reason  why  the  gentle 
man  from  Kentucky  should  not  be  enlightened  on  the  sub 
ject  concerning  which  he  grovelled  in  such  profound  dark 
ness.  General  Kearny,  under  the  laws  of  nations,  had  a 
clear  right  to  do  what  he  had  done,  whether  so  ordered  by 
the  President  or  not.  The  country  was  ours  by  conquest; 

1  Globe,  29  Cong.  2  Sess.,  12. 


I08  MILITARY  GOVERNMENT  [292 

his  proclamation  had  merely  announced  that  fact.  If  we 
should  conclude  a  treaty  with  Mexico  without  boundaries, 
all  these  territories  would  remain  a  part  of  the  territory  of 
the  United  States.  The  establishment  of  a  civil  govern 
ment  was  necessary  for  the  protection  of  the  inhabitants. 

Mr.  Rhett,  of  South  Carolina,  maintained  that  the  Presi 
dent's  power  to  govern  conquered  territory  was  plenary, 
subject  only  to  moral  and  international  law.  Sic  volo  sic 
jubeo  was  his  rule.  This  did  not  apply  to  territory  within 
the  limits  of  the  Union.  But  California  1  and  New  Mexico 
were  not  any  part  of  the  Union — the  Constitution  did  not 
extend  over  them.  Mr.  Davis  here  interrupted  to  say  that 
both  had  been  proclaimed  to  be  such,  whereupon  Mr.  Rhett 
retorted  that  those  proclamations  only  proved  that  the 
gentlemen  issuing  them  were  "  gumps."  It  was  not  to  be 
expected  that  Captain  Stockton *  should  know  anything 
about  the  Constitution.  Indeed,  there  were  some  who  main 
tained  that  Congress  could  not  annex  territory,  yet  here 
they  quoted  General  Kearny  and  declared  that  he  had 
done  so. 

Mr.  Schenck,  of  Ohio,  quoted  from  the  President's  mes 
sage  to  show  that  he  regarded  Santa  Fe  as  within  the  bounds 
of  Texas.  Yet  his  general  had  gone  there  and  set  up  a 
government,  an  imperiwn  in  imperio.  Could  Governor 
Stockton's  proclamation  as  given  in  the  papers  be  authen 
tic?  It  might  have  been  treated  as  a  hoax  at  first,  but  it 
was  a  serious  thing.  Yet  gentlemen  contended  that  Congress 
must  vote  supplies  and  send  out  generals  to  regulate  con 
quered  peoples  subject  only  to  moral  and  international  law. 
Such  a  doctrine  would  not  stand.  Suppose  Captain  Stock 
ton  had  declared  himself  emperor  of  California,  would  Con 
gress  have  nothing  to  do  with  it? 

1  Stockton's  proclamation  annexing  California  had  also  been  re 
ceived.  See  infra,  p.  160  et  seq. 


293]  THE  OCCUPATION  OF  NEW  MEXICO 

Mr.  Holmes,  of  New  York,  held  that  a  conqueror  could 
only  do  what  self-defense  required.  If  the  people  sub 
mitted,  he  was  bound  to  treat  them  with  clemency,  not  with 
military  rigor.  He  had  only  the  rights  of  the  dispossessed 
sovereign,  no  more;  he  was  bound  to  administer  the  laws 
as  he  found  them.  To  say  that  the  inhabitants  could  be 
punished  for  treason  was  untenable. 

Mr.  Seddon,  o<f  Virginia,  appears  to  have  made  the  long 
est  and  clearest  speech.  He  maintained  that  the  law  of 
nations  was  the  only  code  applicable  to  our  relations  with 
Mexico1,  and  that  it  alone  restricted  the  conquering  power. 
A  wide  distinction  existed  between  what  the  Executive 
might  do  at  home  under  the  Constitution  and  what  he  might 
do  abroad  in  prosecuting  a  war  under  the  law  of  nations. 
This  question  was  external  purely.  It  was  the  duty  of  the 
conqueror  to  save  the  conquered  from  that  worst  state  of 
all — anarchy;  if  he  mitigated  the  rigors  of  military  gov 
ernment  by  a  civil  one,  that  was  an  act  of  kindness  of 
which  the  conquered  could  not  complain.  In  all  this  work 
the  President  had  exercised  no  powers  derivable  from  the 
Constitution  as  merely  executive  powers;  they  were  the 
powers  of  a  generalissimo.  Nor  had  he  exceeded  his  author 
ity.  What  had  been  done  and  what  might  be  done  by  him 
and  his  subordinates  was  subject  to  review  by  Congress. 
After  obtaining  fuller  information,  it  might  be  well  for 
them  to  legislate  in  regard  to  the  provisional  government 
to  be  retained  over  the  conquered  provinces  and  to  define 
more  specifically  the  functions  of  the  authorities  to  be  em 
ployed  in  them.1 

The  resolution  was  adopted.  In  reply  the  President  sent 
in  (December  22)  reports  from  the  Departments  of  the 
Army  and  Navy,  accompanied  by  the  documents  already 

1  Globe,  ibid.,  13  et  scq. 


IIO  MILITARY  GOVERNMENT  [294 

quoted  in  making  up  the  account  of  the  proceedings  in 
New  Mexico  and  California.  He  explained  that  the  orders 
and  instructions  were  given  to  regulate  the  exercise  of  the 
rights  of  a  belligerent  in  conquered  territory — rights  neces 
sarily  resulting  from  a  state  of  war  and  clearly  recognized 
by  the  laws  of  nations.  Continuing,  he  said : 

Among  the  documents  accompanying  the  report  of  the  Secre 
tary  of  War,  will  be  found  a  "  form  of  government "  "  es 
tablished  and  organized "  by  the  military  commander  who 
conquered  and  occupied  with  his  forces  the  territory  of  New 
Mexico.  This  document  was  received  at  the  War  Department 
in  the  latter  part  of  last  month,  and  as  will  be  perceived  by  the 
report  of  the  Secretary  of  War,  was  not,  for  the  reasons  stated 
by  that  officer,1  brought  to  my  notice  until  after  my  annual 
message  of  the  8th  instant  was  communicated  to  Congress. 

It  is  declared  on  its  face  to  be  a  "temporary  government "  of 
the  said  territory ;  but  there  are  portions  of  it  which  purport  to 
"  establish  and  organize  "  a  permanent  territorial  government 
of  the  United  States  over  the  territory,  and  to  impart  to  the 
inhabitants  political  rights  which,  under  the  constitution  of  the 
United  States,  can  be  enjoyed  permanently  only  by  citizens  of 
the  United  States.  These  have  not  been  "  approved  and  re 
cognized  "  by  me.  Such  organized  regulations  as  have  been 
established  in  any  of  the  conquered  territories  for  the  security 
of  our  conquest,  for  the  preservation  of  order,  for  the  protection 
of  the  rights  of  the  inhabitants,  and  for  depriving  the  enemy 
of  the  advantages  of  these  territories  while  the  military  pos 
session  of  them  by  the  forces  of  the  United  States  continues, 
will  be  recognized  and  approved. 

The  President  added  that  if  any  excess  of  power  had  been 
exercised,  the  departure  had  been  due  to  a  patriotic  desire 

1  Owing  to  the  press  of  indispensable  current  business  he  had  not 
had  time  to  read  it 


295]      •        THE  OCCUPATION  OF  NEW  MEXICO  IIr 

on  the  part  of  the  officers  to  give  to  the  inhabitants  the 
privileges  and  immunities  so  cherished  by  the  people  of  our 
own  country.  The  excess  had  resulted  in  no  practical  in 
jury,  but  could  and  would  be  early  corrected  in  a  manner 
to  alienate  as  little  as  possible  the  good  feelings  of  the  in 
habitants  of  the  conquered  territory. 

A  few  speeches  made  subsequent  to  the  reception  of  this 
message  trenched  upon  the  subject,  but  really  brought  out 
nothing  new.  Halleck,  who  took  part  in  the  affairs  here 
after  to  be  narrated,  has  since  given  a  clear  statement  of 
the  international  law  applicable  to  the  case  as  generally 
accepted  at  the  time: 

Political  laws,  as  a  general  rule,  are  suspended  during  the 
military  occupation  of  a  conquered  territory.  The  political 
connection  between  the  people  of  such  territory  and  the  state  to 
which  they  belong  is  not  entirely  severed,  but  is  interrupted  or 
suspended  so  long  as  the  occupation  continues.  Their  lands 
and  immovable  property  are,  therefore,  not  subject  to  the  taxes, 
rents,  etc.,  usually  paid  to  the  former  sovereign.  These  belong 
of  right  to  the  conqueror,  and  he  may  demand  and  receive  their 

payment  to  himself  as  a  part  of  the  spoils  of  war 

The  municipal  laws  of  a  conquered  territory,  or  the  laws 
which  regulate  private  rights,  continue  in  force  during  military 
occupation,  except  so  far  as  they  are  suspended  or  changed  by 
the  acts  of  the  conqueror.  Important  changes  of  this  kind 
are  seldom  made,  as  the  conqueror  has  no  interest  in  interfer 
ing  with  the  municipal  laws  of  the  country  which  he  holds 
by  the  temporary  rights  of  military  occupation.  He  neverthe 
less  has  all  the  powers  of  a  de  facto  government,  and  can,  at 
his  pleasure,  either  change  the  existing  laws,  or  make  new  ones.1 

The  theory  that  conquest  added  the  land  subdued  to  the 
realm  of  the  victor  had  come  down  through  the  ages,  but 

1  Halleck,  Int.  Law,  780  et    seq.;  ibid.  (Baker,  1893),  ii,  437  et  seq. 


II2  MILITARY  GOVERNMENT  [2g6 

was  obsolete  even  at  that  time.  But  the  merest  tyro  in 
American  constitutional  law  ought  to  have  known  that  he 
could  not  annex  territory,  naturalize  the  inhabitants,  and 
confer  political  rights  by  proclamation.  The  words  of  Chief 
Justice  Taney,  delivered  two  years  later  on  a  case  growing 
out  of  the  Mexican  War,  will  apply: 

The  relation  in  which  [the  conquered  territory]  stood  to  the 
United  States  while  it  was  occupied  by  their  arms  did  not 
depend  on  the  laws  of  nations,  but  upon  our  own  constitution 
and  acts  of  Congress.  .  .  .  The  inhabitants  were  still  foreign 
ers  and  enemies,  and  owed  to  the  United  States  nothing  more 
than  the  submission  and  obedience,  sometimes  called  temporary 
allegiance,  which  is  due  from  a  conquered  enemy,  when  he  sur 
renders  to  a  force  which  he  is  unable  to  resist.1 

Further  comment  is  hardly  necessary  to  show  in  what 
respect  the  instructions  issued  from  the  War  Department 
in  relation  to  temporary  governments  had  been  exceeded. 
Not  even  a  careless  reading  of  a  carelessly  worded  sentence 
— that  authorizing  the  administration  of  the  oath  of  alle 
giance  to  such  officers  as  would  continue  to  serve — justified 
a  commander  in  imagining  that  he  could  confer  the  rights 
of  citizenship.  Allegiance  is  a  term  most  commonly  applied 
to  citizens  or  subjects,  consequently  Secretary  Marcy  should 
not  have  used  it  here,  as  that  was  practically  to  demand 
that  the  officers  should  exercise  their  functions  in  the  name 
of  the  United  States.  At  least  the  oath  should  have  been 
one  of  only  "  temporary  allegiance."  Even  this  could  have 
been  avoided  by  simply  requiring  an  oath  to  obey  the  orders 
imposed  by  the  military  commander.2  The  law  on  this 

1  Fleming  vs.  Page,  9  How.,  615  et  seq. 

2  Compare  W.  E.  Hall,  Int.  Law,  sec.   157;   Calvo,  Droit  Internat., 
sec.  1891. 


297]  THE  OCCUPATION  OF  NEW  MEXICO  n$ 

subject,  as  it  stands  in  the  Hague  Convention,  is  that 
"  any  pressure  on  the  population  of  occupied  territory  to 
take  the  oath  of  allegiance  to  the  hostile  Power  is  pro 
hibited."  1 

While  Halleck  qualifies,  in  a  slight  degree,  the  right  of 
the  conqueror  to  change  the  municipal  law,  later  writers 
go  much  farther  and  say  that  changes  should  be  made  only 
in  such  laws  as  afford  strength  to  the  enemy  and  are  a 
source  of  danger  to  the  army  of  occupation.  It  is  hard  to 
see  how  the  writ  of  habeas  corpus  or  the  right  of  trial  by 
jury  could  have  been  introduced  into  New  Mexico  under 
this  rule. 

In  no  other  case  did  the  commanders  go  so  far  in  recon 
structing  the  governments  on  Mexican  soil.  In  some  cases 
political  laws  were  changed  or  suspended,  especially  such 
as  related  to  the  revenue.  For  the  most  part,  however,  the 
municipal  laws  were  not  only  allowed  to  stand,  but  specific 
directions  were  given  that  the  administration  of  justice 
through  the  ordinary  courts  should  not  be  interfered  with 
except  where  some  one  connected  with  the  army  was  a 
party,  or  in  political  cases.2 

No  reason  appears  to  have  been  given  by  General  Kearny 
for  the  course  pursued  by  him  in  New  Mexico,  but  it  prob 
ably  is  fair  to  assume  that  he  was  endeavoring  to  "  abolish 
arbitrary  restrictions."  The  fact  that  the  commander  in 
New  Mexico,  and  in  California,  as  we  shall  see  later,  pur 
sued  a  course  different  from  that  adopted  elsewhere  is  prob 
ably  due  to  the  fact  that  they  knew  it  to  be  the  purpose 
of  the  administration  to  make  a  permanent  conquest  of 
those  countries. 

1  Holls,   The  Peace  Conference  at  The  Hague,  447. 

2  Scott's  General  Orders,  nos.  20  and  287,  February  19  and  Septem 
ber  17,  1847.     To  be  found  in  Birkhimer,  Mil.  Govt.,  466  et  seq. 


!  !  4  MILITAR  Y  GO  VERNMENT  [  298 

III.  THE  CONQUERED  COUNTRY.     ITS  NEW  GOVERNMENT 

The  territory  brought  under  subjection  by  proclamation 
and  put  in  care  of  a  quasi-civil  government  by  General 
Kearny  was  one  of  vast  extent,  including  besides  the  pres 
ent  territory  of  New  Mexico,  all  of  Arizona  and  a  part 
of  Colorado.  The  population,  however,  was  not  large,  and 
centered  about  Santa  Fe.  For  our  purposes  the  remote  dis 
tricts  may  be  disregarded.  According  to  the  most  reliable 
data,  the  total  pure  white  and  mixed  population  amounted 
to  about  61,500.  The  number  of  wild  Indians  was  esti 
mated  at  36,950,  of  whom  12,000  were  Comanches,  7,000 
Navajoes;  the  Pueblo  (civilized)  Indians  above  five  years 
of  age  numbered  6,524.  The  population  of  Santa  Fe,  the 
chief  town,  was  estimated  at  3,000  just  before  the  American 
occupation,  with  3,000  more  in  the  vicinity  under  its  juris 
diction;  just  after  the  occupation  at  12,000,  of  whom  3,500 
were  soldiers.1  A  large  part  of  the  increase  was  due  to 
visitors,  mountaineers,  and  traders  who  had  flocked  in  to 
supply  the  army. 

The  character  of  the  people  was  about  the  same  as  that  of 
Mexicans  elsewhere.  They  were  naturally  indolent,  and  fond 
of  smoking,  dancing,  and  gambling.  The  lower  classes  were 
as  ignorant  as  they  were  idle;  many  had  been  reduced  to 
peonage  through  the  law  of  debt.  The  education  of  the 
upper  classes  was  sadly  neglected.  In  1847,  there  was  only 
one  public  school  in  Santa  Fe,  with  one  teacher,  supported  by 
county  funds.  The  number  of  private  schools  is  not  known, 
but  there  were  several  in  the  territory,  some  supported  en 
tirely  by  private  contributions,  while  others  received  govern 
ment  aid.  In  1840,  six  schools  received  a  total  of  $1,850 

1  N.  Mex.  Blue  Book;  Mayer,  N.  Mex.  and  CaL,  ii,  359  et  seq.;  Ladd. 
Story  of  N.  Mex.,  263. 


299]  THE  OCCUPATION  OF  NEW  MEXICO  n$ 

from  the  government.  Only  one  printing-press  was  to  be 
found  in  the  territory.1 

The  previous  political  history  of  the  territory  is  not  very 
attractive.  Like  the  rest  of  Mexico,  it  had  had  its  share  of 
revolutions  and  usurpations  by  political  dictators.  There 
was  a  considerable  overland  trade  in  1843 — $45°>oo°>  car~ 
ried  on  with  230  wagons,  yielding  from  $50,000  to  $80,000 
in  annual  revenue.  But  the  central  Mexican  government 
received  very  little  benefit  from  this,  as  nearly  half  of  it 
was  embezzled  by  the  customs  officers.  Because  of  troubles 
arising  from  this  trade,  Santa  Anna  issued  a  decree,  in 
1843,  closing  the  northern  ports  to  foreign  commerce.  For 
a  few  years  Governor  Armijo  established  a  tariff  rate  of 
his  own — $500  per  wagon,  regardless  of  size  or  value.  The 
traders  soon  learned  to  take  advantage  of  this  by  carrying 
costly  goods  in  large  wagons,  whereupon  the  governor  went 
back  to  ad  valorem  rates,  but  without  regard  to  the  Mexi 
can  imposts,  which  averaged  about  one  hundred  per  cent, 
upon  the  cost  in  the  United  States. 

The  judiciary  was  a  Spanish  inheritance,  consequently 
much  like  that  we  have  already  met  with  in  Louisiana  and 
Florida.  Further  notice  of  it  at  this  point  is  unnecessary. 

In  1853,  Mr.  Phelps,  a  member  of  Congress,  speaking 
of  the  officials  of  the  government  set  up  by  General  Kearny 
in  place  of  the  one  he  had  overthrown,  said  that  they  were 
Americans  residing  in  New  Mexico.  While  this  was  true 
in  part,  it  is  likely  to  create  a  wrong  impression.  They 
were  not  mere  adventurers.  Some  of  them  had  resided 
there  many  years,  ten  or  fifteen,  and  had  become  bound  to 
the  country  by  marital  and  other  ties.  This  was  true  of 
the  governor,  Charles  Bent,  a  native  of  Virginia,  who  had 

1  Sen.  Doc.,  30  C.  I  S.,  no.  26;  Report  of  Gov.  N.  Mex.  to  Sec. 
Int.,  1900,  p.  49. 


!  ! 6  MILITARY  GOVERNMENT  [300 

been  in  New  Mexico  since  1832.  The  secretary,  Donan- 
ciana  Vigil,  was  a  native  of  New  Mexico,  had  held  a  num 
ber  of  public  offices,  both  military  and  civil,  and  enjoyed 
the  confidence  and  respect  of  the  whole  people.  Francis 
P.  Blair,  Jr.,  district  attorney,  was  a  member  of  the  Mis 
souri  Blair  family,  and  was  afterwards  prominent  in  public 
life  at  Washington.  Two  members  of  the  supreme  court, 
Joab  Houghton  and  Charles  Beaubien,  were  Americans,  but 
the  latter  had  been  a  resident  of  Taos,  New  Mexico,  since 
1827,  had  married  a  native,  and  was  widely  known  and 
respected.  The  other  member,  Antonio  Jose  Otero,  was 
a  member  of  an  old  Mexican  family,  a  man  of  high  char 
acter  and  reputation,  and  of  influential  connections.  The 
Oteros  are  prominent  in  public  life  to  this  day.  Nearly  all 
the  other  officers,  judging  in  some  instances  only  by  their 
names,  were  natives,  some  of  them  members  of  prominent 
families.1 

Twice  in  his  reports  General  Kearny  spoke  of  the  feel 
ing  with  which  the  change  had  been  received.  August  24, 
two  days  after  his  famous  proclamation,  he  says :  "  The 
people  are  now  tranquil,  and  can  easily  be  kept  so.  The 
intelligent  portion  know  the  advantages  they  are  to  derive 
from  the  change  of  government,  and  express  their  satis 
faction  at  it."  Again,  in  reporting  (September  16)  a  jour 
ney  of  one  hundred  miles  down  the  Del  Norte  to  Tome: 
"  The  inhabitants  of  the  country  were  found  to  be  highly 
satisfied  and  contented  with  the  change  of  government,  and 
apparently  vied  with  each  other  to  see  who  could  show  us 
the  greatest  hospitality  and  kindness.  There  can  no  longer 
be  apprehended  any  organized  resistance  in  this  Territory 
to  our  troops;  and  the  commander  of  them,  whoever  he 
may  be,  will  have  nothing  to  attend  to  but  to  secure  the 

1  N.  Mex.  Blue  Book ;  Prince,  Hist.  N.  Mex.,  307  et  seq. 


30i]  THE  OCCUPATION  OF  NEW  MEXICO  1 17 

inhabitants  from  further  depredations  from  the  Navajoe 
and  Eutaw  Indians;  and  for  this  object  paragraph  three 
of  Orders  No.  23  was  this  day  issued."  * 

Soon  after  this  the  general  set  out  for  fresh  fields  of 
conquest.  How  far  his  sanguine  hope  for  the  peace  and. 
prosperity  of  the  country  he  was  leaving  were  justified  the 
sequel  will  show. 

IV.  THE  REVOLT  AND  RECONQUEST 

About  three  hundred  troops  were  to  follow  General 
Kearny  to  California.  Colonel  Doniphan  was  directed  to 
•  remain  in  New  Mexico  with  his  regiment  until  relieved  by 
Colonel  Price,  then  daily  expected  with  a  regiment  from 
the  United  States.2  September  25  the  movement  for  Cali 
fornia  was  begun. 

Hardly  had  the  general  passed  beyond  the  scenes  of  his 
conquest  when  signs  of  unrest  began  to  manifest  them 
selves  among  the  people  he  had  left  so  happy  and  con 
tented.  While  the  people  generally,  says  the  historian 
Prince,3  had  apparently  submitted  to  the  new  order  with 
good  grace,  yet  there  was  naturally  much  discontent  be 
neath  the  quiet  exterior,  especially  among  those  who  had 
been  leaders  and  who  thought  that  the  attainment  of 
their  ambition  or  the  pursuit  of  their  pleasure  might  be 
interfered  with  by  the  new  regime.  Chafing  at  the  thought 
that  others  had  superseded  them,  some  of  the  former  leaders 
formed  a  wide-spread  plot  to  kill  or  drive  out  of  the  terri 
tory  all  Americans  and  all  Mexicans  who  had  taken  office 
under  them.  The  date  of  the  uprising  was  first  set  for 
December  12,  but  was  postponed  a  week  for  the  better  per- 

1  H.  Ex.  Doc.,  29  C,  i  S.,  no.  19,  pp.  19,  24. 

2  Sen.  Ex.  Doc.,  30  C.  i  S.,  no.  7,  P-  45- 

3  Hist.  N.  Mex.,  313  et  seq. 


MILITARY  GOVERNMENT  [3O2 

fecting  of  plans,  and  then  again  till  December  24,  when  it 
was  thought  the  soldiers  would  be  engaged  in  festivities 
at  the  various  saloons  and  could,  while  thus  dispersed  and 
unarmed,  be  easily  killed  or  captured.  This  delay  proved 
fatal,  for  a  Mexican  friendly  to  the  new  order  of  things 
informed  Governor  Bent  of  the  plot  a  week  before  the  day 
for  the  uprising.  Colonel  Price  also  had  heard  of  the 
movement,  and  both  the  civil  and  military  authorities  now 
took  active  measures  to  seize  the  conspirators.  Some  of 
the  supposed  leaders  were  arrested  and  left  with  the  mili 
tary  authorities  to  be  summarily  dealt  with,  but  two  of  them 
escaped  in  the  direction  of  Chihuahua.1 

In  reporting  this  occurrence  to  Washington,  Governor 
Bent  said  that  the  conspiracy  was  confined  to  the  four 
northern  counties,  and  that  the  leaders  were  men  of  little 
standing.1  The  latter  statement  is  contradicted  by  Prince, 
who  gives  the  names  and  standing  of  several.  Among  them 
he  mentions  Diego  Archuleta,  who  had  sat  in  the  Mexican 
Congress  for  New  Mexico;  Tomas  Ortiz,  who  had  been 
second  in  command  to  Armijo — both  men  of  considerable 
influence — and  two  priests,  Jose  Manuel  Gallegos  and  Juan 
Felipe  Ortiz.  The  priests  in  particular  were  active.  Archu 
leta  and  Tomas  Ortiz,  who  were  to  have  been  commanding' 
general  and  governor  respectively,  escaped.  No  convictions 
appear  to  have  been  made. 

In  his  report  Governor  Bent  took  occasion  to  say  that 
he  considered  this  attempted  revolt  as  conclusive  evidence 
of  the  necessity  of  keeping  an  efficient  military  force — 
about  one  thousand  men — in  the  territory  for  several  years. 

It  was  now  thought  that  the  insurrection  was  suppressed, 
but  such  was  not  the  case.  January  14,  1847,  Governor 

1  Sen.  Ex.  Doc.,  30  C.  I  S.,  no.  i,  p.  520;  H.  Ex.  Doc.,  30  C 
J  S.,  no.  70,  p.  17. 


303]  THE  OCCUPATION  OF  NEW  MEXICO  ng 

Bent,  supposing  all  danger  past,  left  Santa  Fe  for  his  home 
in  Taos.  There,  says  Secretary  Vigil  in  a  report  sent 
to  the  Secretary  of  State,  Mr.  Buchanan,  he  was  assailed 
on  the  morning  of  January  19,  in  his  private  dwelling,  by 
a  company  of  Indians  of  the  Taos  Pueblo,  together  with  a 
number  of  Mexican  inhabitants  of  the  town,  and  slain 
with  all  the  horrible  details  of  savage  barbarity.  On  that 
and  the  following  day  twelve  other  Americans  and  two 
Mexicans  suffered  a  similar  fate.  Among  them  were  the 
governor's  brother-in-law  and  a  son  of  Judge  Beaubien, 
the  circuit  attorney,  the  sheriff,  and  prefect  (Cornelio  Vigil) 
of  the  county. 

Whether  this  was  the  preconcerted  opening  of  a  general 
uprising  is  not  known,  but  the  insurrection  soon  became 
general.  The  lower  classes  of  Mexicans  in  the  valley  of 
Taos  and  of  the  small  towns  in  the  vicinity  rose  en  masse 
and  joined  the  pueblos  in  pillage  and  murder.  At  Arroyo 
Hondo,  twelve  miles  above  Taos,  seven  Mexicans  were 
killed;  at  Mora,  Mr.  L.  Waldo,  who  had  translated  the 
Mexican  laws  for  General  Kearny,  known  and  respected 
for  some  years  as  a  merchant  in  the  territory,  suffered 
death,  together  with  several  other  Americans.  A  revolu 
tionary  army  was  now  organized  and  circulars  were  sent 
to  different  parts  of  the  territory  to  excite  the  people  to 
arms. 

When  Colonel  Price  heard  of  Governor  Bent's  murder 
he  at  once  took  active  measures.  The  resident  Americans 
and  some  natives  came  to  his  aid.  Ceran  St.  Vrain,  a 
native  of  Missouri,  raised  a  volunteer  company  of  fifty- 
seven  men  in  Santa  Fe,  composed  of  all  the  American  resi 
dents  and  a  few  natives,  which  brought  the  colonel's  imme 
diate  command  up  to  three  hundred  and  ten.  His  entire 
force  in  and  about  Santa  Fe  amounted  to  only  four  hun 
dred  and  twenty-seven  men,  rank  and  file.  But  with  these 


I20  MILITARY  GOVERNMENT  [304 

forces  Taos  was  soon  captured,  after  two  battles  in  which 
one  hundred  and  eighty-six  of  the  insurrectionists  were 
slain;  seven  Americans  were  killed  and  forty  wounded.1 

When  the  alcalde  of  Las  Vegas  received  the  news  of  the 
uprising  and  the  call  to  arms  he  consulted  with  some  of 
the  leading  men,  who  advised  him  to  keep  faith  with  the 
United  States.  He  then  assembled  the  people,  reminded 
them  of  his  oath,  which  they  had  witnessed,  and  said  that 
he  considered  them  bound  through  himself.  "  As  for  me, 
I  assure  you  that  I  am  determined  to  live  and  die  by  that 
oath."  This,  with  the  action  of  Captain  Hendley,  who 
occupied  the  town  next  day  with  two  hundred  and  fifty 
men,  prevented  an  uprising  there.  January  24  the  captain 
attacked  Mora,  now  occupied  by  one  hundred  and  fifty 
armed  Mexicans,  but  fell  in  the  assault  and  his  command 
withdrew.  February  i,  Captain  Morin  captured  the  town 
and  demolished  a  considerable  part  of  it.  By  February  16 
the  central  and  southern  districts  had  been  pacified,  and  the 
insurrectionists  were  confined  to  the  north,  where  hardly 
a  man  of  wealth  or  consequence,  says  Secretary  Vigil,  was 
concerned.1 

The  cost  of  the  insurrection  was  estimated  by  Vigil  at 
something  over  $100,000  in  loss  of  property  to  Americans 
and  natives.  The  loss  of  life  amounted  to  more  than  two 
hundred,  mainly  on  the  side  of  the  insurgents. 

Two  leaders  of  the  revolt  were  slain  in  battle.  One, 
Pablo  Montoya,  was  court-martialed  and  hanged.  An 
other,  Tamos,  a  Pueblo  Indian,  was  shot  by  a  private  while 
in  the  guard-room  at  Taos.  February  7,  fourteen  others 
were  tried  for  complicity  in  the  murder  of  Governor  Bent, 
found  guilty  and  executed.  At  the  March  term  of  the 
United  States  district  court  for  New  Mexico  four  were 

1  Prince,  ibid.;  H.  Ex.  Doc.,  30  C.  I  S.,  no.  70,  pp.  18  et  seq.; 
ibid.,  no.  8. 


305]  THE  OCCUPATION  OF  NEW  MEXICO  I2l 

indicted  for  treason.  One,  Antonio  Trujillo,  was  found 
guilty  and  sentenced  to  death,  one  was  discharged  under 
a  nolle  prosequi,  and  the  other  two  obtained  continuance  to 
the  adjourned  term  in  the  following  May.  By  April  i, 
twenty-five  of  those  confined  at  Santa  Fe  had  been  dis 
charged,  the  jury  not  finding  sufficient  evidence  to  indict 
for  treason.  Fifty  were  still  confined  at  Taos  awaiting 
trial. 

Immediately  after  Trujillo  was  sentenced,  a  petition, 
signed  by  the  court,  by  the  "  United  States  district  attor 
ney,"  the  counsel  for  defense,  most  of  the  jury,  and  many 
respectable  citizens,  was  laid  before  Secretary  Vigil,  now 
governor,  by  the  Organic  Law  of  the  territory,  praying 
for  a  stay  of  the  execution  until  a  petition  could  be  laid 
before  the  President  for  the  pardon  of  the  prisoner  on 
account  of  his  age  and  infirmity.  The  governor  granted 
the  request,  though  satisfied  that  the  accused  had  had  a 
fair  trial,  and  had  been  legally  convicted  and  justly  sen 
tenced,  and  reported  (March  23)  the  matter  to  Secretary 
Buchanan. 

Mr.  Blair,  the  "United  States  district  attorney,"  also 
made  a  report  (April  i)  to  the  Attorney-General.  He, 
doubtless,  was  aware  how  General  Kearny  had  declared  the 
inhabitants  of  New  Mexico  to  be  citizens  of  the  United 
States,  and  liable  to  penalty  for  infraction  of  their  laws  in 
the  same  way  as  citizens  of  any  other  territory;  how  he 
had  established  a  superior  court,  with  jurisdiction  as  a 
United  States  district  court.  As  "  district  attorney,"  Mr. 
Blair  had,  he  said,  felt  it  to  be  his  duty  to  prosecute  all  acts 
of  treason  committed  by  the  inhabitants  of  the  territory. 
He  added : 

In  nearly  all  the  cases  tried,  the  counsel  for  the  defence  have 
entered  pleas  to  the  jurisdiction  of  the  court,  which  the  court 


122  MILITARY  GOVERNMENT 

over-ruled,  and  in  the  case  of  Trujillo,  who  was  convicted,  the 
defence  plead  the  jurisdiction  of  the  court  before  the  jury, 
declaring  it  to  be  unconstitutional  to  try  any  native  inhabitant 
of  New  Mexico  for  the  crime  of  treason  against  the  govern 
ment  of  the  United  States,  until  by  actual  treaty  with  Mexico 
he  became  a  citizen.  The  court  ruled  out  any  consideration  of 
this  point  by  the  jury,  leaving  it  only  the  evidence  and  facts 
upon  which  to  make  its  verdict.  Considering  that  it  was 
constituted,  the  court  was  bound  by  its  oath  to  view  all  the 
inhabitants  of  New  Mexico  as  citizens  of  the  United  States, 
and  to  execute  the  laws  in  regard  to  them  as  such,  leaving  the 
responsibility  of  the  question  of  its  constitutionality  to  fall  back 
upon  the  power  which  constituted  it. 

I  am  anxious  to  receive  your  counsel  and  advice  at  the 
earliest  possible  moment  in  regard  to  all  the  matters  above 
referred  to.1 

January  n,  1847,  Secretary  Marcy  addressed  a  letter  to 
General  Kearny,  commanding  the  United  States  army  in 
California,  Mexico,  and  sent  him  at  the  same  time  a  copy 
of  the  President's  message,  with  the  documents  accom 
panying  it,  in  answer  to  the  resolution  of  the  House  dis 
cussed  in  a  preceding  chapter.  In  this  letter  he  informed 
the  general  that,  in  conferring  political  rights  upon  the 
people  of  the  territory,  he  had  gone  beyond  the  lines  desig 
nated  by  the  President,  as  such  rights  could  be  conferred 
only  by  Congress.  "  So  far  as  the  code  of  laws  estab 
lished  in  New  Mexico,  by  your  authority,  attempts  to 
confer  such  rights,  it  is  not  approved  by  the  President, 
and  he  directs  me  to  instruct  you  not  to  carry  such  parts 
into  effect."  * 

When  Governor  Vigil's  letter  was  received,   Secretary 

1  H.  Ex.  Doc.,  30  C.  i  S.,  no.  70,  pp.  24  et  seq. 

2  H.  Ex.  Doc.,  31  C.  i   S.,  no.  17,  p.  244. 


307]  THE  OCCUPATION  OF  NEW  MEXICO 

Buchanan  turned  it  over  to  the  War  Department.  June  n, 
1847,  Secretary  Marcy  wrote  to  Colonel  Price,  command 
ing  at  Santa  Fe,  to  the  effect  that  the  government  there 
was  purely  military,  not  deriving  its  authority  from  the 
laws  of  Congress  or  the  Constitution  of  the  United  States; 
that  the  President  could  not  exercise  any  authority  over  it 
other  than  as  commander-in-chief,  and  that  he  would  not 
interfere  beyond  the  instructions  of  June  3,  1846.  The 
appointment  of  a  governor  (which  Vigil  had  urged)  was 
left  to  the  commanding  officer.  The  petition  for  the  par 
don  of  Trujillo  had  not  been  received,  but  that  matter  also 
was  left  to  the  colonel,  with  an  expression  of  the  hope  that 
the  prisoner  would  be  spared.1 

Upon  the  receipt  of  Mr.  Blair's  letter  the  Attorney- 
General  turned  it  over  to  Secretary  Marcy,  who  again 
(June  26)  wrote  to  Colonel  Price: 

I  perceive  that  down  to  the  1st  of  April  last  .  .  .  some  mis 
taken  views  still  prevailed  in  New  Mexico  concerning  the  civil 
government  there  established;  and  I  am,  therefore,  apprehen 
sive  that  you  are  not  in  possession  of  my  letter  of  the  nth  of 
January  last,  relative  to  that  subject,  ...  a  copy  of  which 
was  sent  to  the  commanding  officer  at  Santa  Fe 

The  territory  conquered  by  our  arms  does  not  become,  by  the 
mere  act  of  conquest,  a  permanent  part  of  the  United  States ; 
and  the  inhabitants  of  such  territory  are  not,  to  the  full  extent 
of  the  term,  citizens  of  the  United  States.  It  is  beyond  dispute 
that,  on  the  establishment  of  a  temporary  civil  government  in 
a  conquered  country,  the  inhabitants  owe  obedience  to  it,  and 
are  bound  by  the  laws  which  may  be  adopted.  .  .  .  Those  in 
New  Mexico,  who,  in  the  late  insurrection,  were  guilty  of 
murder,  or  instigated  others  to  that  crime,  were  liable  to  be 
punished  for  these  acts,  either  by  the  civil  or  military  author- 

XH.   Ex.   Doc.,   30   C   i    S.,   no.   70,   p.   32. 


124  MILITARY  GOVERNMENT 

ity ;  but  it  is  not  the  proper  use  of  legal  terms  to  say  that  their 
offence  was  treason  committed  against  the  United  States;  for 
to  the  government  of  the  United  States,  as  the  government  un 
der  our  constitution,  it  would  not  be  correct  to  say  that  they 
owed  allegiance.1 

Again  it  was  the  decided  wish  of  the  President  that  Tru- 
jillo  should  be  spared. 

Ladd  tells  us  that  Trujillo  was  hanged  as  a  traitor,2  but, 
in  view  of  what  has  been  quoted  above,  the  writer  is  in 
clined  to  doubt  this  unsupported  statement. 

It  can  hardly  be  necessary  to  say  anything  further  on 
the  question  of  allegiance  and  the  right  to  prosecute  for 
treason.  We  can  only  regret  that  President  Polk's  promise 
to  correct  General  Kearny's  mistakes  was  not  sooner  ful 
filled.  But  a  word  may  be  added  upon  the  subject  of  in 
surrection  and  the  right  to  punish  for  this. 

According  to  the  writers  on  international  law,  the  in 
habitants  of  a  country  which  has  submitted  or  formally 
surrendered  are  virtually  in  the  condition  of  prisoners  of 
war  on  parole.  To  the  conqueror  they  owe  submission  and 
obedience  so  long  as  he  does  not  treat  them  with  unmerited 
harshness — confiscate  or  destroy  their  property,  take  away 
the  liberty  of  some,  the  lives  of  others.  Says  Halleck: 

The  right  of  insurrection  in  war,  therefore,  rests  upon  the 
same  principle  as  the  right  of  revolution  against  an  established 
government.  .  .  .  The  insurgents  taken  in  arms,  as  well  as 
their  instigators,  may  therefore  be  put  to  death,  and  their 

property  confiscated  or  destroyed Such  severe  rights 

should  always  be  used  with  moderation,  and  their  exercise 
tempered  with  mercy.  Hence,  in  modern  wars,  only  the  lead 
ers  and  instigators  of  a  military  insurrection  are  usually  pun- 

1H.   Ex.   Doc,  30  C   i    S.,  no.   70,  p.  33 
*  Story  of  N.  Me*.,  293. 


309]  -THE  OCCUPATION  OF  NEW  MEXICO 

ished  with  death,  while  the  common  people  who  are  engaged  in 
it  are  more  leniently  dealt  with.  Sometimes,  heavy  contribu 
tions  are  levied  by  way  of  punishment  upon  the  place  or  district 
of  country  where  the  insurrection  occurs.1 

The  Supreme  Court  of  the  United  States  had  already 
recognized  the  principle  of  temporary  allegiance  in  the 
case  of  Castine,  Maine,  occupied  by  the  British  in  1814. 
"  By  the  surrender  the  inhabitants  passed  under  a  tem 
porary  allegiance  to  the  British  government,  and  were 
bound  by  such  laws,  and  such  only  as  it  chose  to  recog 
nize  and  impose."  2 

The  question  now  is  whether  there  had  been  provocation 
sufficient  to  justify  the  insurrection.  Unfortunately  the 
Mexican  sources  upon  the  subject  are  scant,  and  their  glar 
ing  inaccuracies  cast  doubt  upon  their  statement  of  matters 
concerning  which  little  is  known.  One  writer  speaks  of 
"  horrible  crimes "  and  the  exaction  of  a  contribution  of 
80,000  pesos.  The  same  writer  says  that  the  outbreak  orig 
inated  in  the  killing  by  a  New  Mexican  of  his  wife,  whom 
a  Yankee  had  seduced.  A  mob  formed  to  support  the 
native,  whom  the  soldiers  were  trying  to  secure.  The 
Sonorense  (March  5,  1847)  speaks  of  frequent  "  conflicts 
caused  by  the  outrages  of  the  soldiers,  who,  except  300 
veterans  (the  dragoons),  were  chiefly  Irish  and  Italians"!8 

Shortly  after  the  revolt  accounts  of  the  lawlessness  on 
the  part  of  the  soldiers  began  to  appear  in  the  American 
press.  "  The  soldiery  have  degenerated  into  a  military 
mob,  are  the  most  open  violators  of  law  and  order,  and 
daily  heap  insult  and  injury  upon  the  people.  .  .  .  One-half 
the  captains  do  not  know  the  number  of  their  men  nor 

1  Halleck,  Int.  Law,  ii,  450  et  seq. 

2  U.  S.  vs.  Rice,  4  Wheaton,  254. 

3  Quoted  in  H.  H.  Bancroft,  Ariz,  and  N.  Mex.   (Works,  xvii),  434. 


126  MILITARY  GOVERNMENT  [310 

where  they  are  to  be  found;  and  they  themselves  are  to 
be  seen  nightly  in  fandangos  and  even  less  reputable  places 
of  dissipation.  .  .  .  About  one-fifth  of  the  whole  command 
have  died  from  the  effects  of  dissipation.  .  .  .  The  want 
of  ability  and  military  knowledge  in  the  commander,  added 
to  his  inability  to  control  his  officers  and  soldiers,  can  only 
produce  the  strongest  feelings  of  disgust  and  hatred,  and 
desire  to  rebel  among  the  native  inhabitants.  ...  It  is 
certain  that  if  such  a  state  of  things  were  to  be  found  in 
any  of  the  territories  of  the  U.  S.,  neither  civil  nor  mili 
tary  govt  would  exist  for  a  week."  * 

The  letter  just  quoted  was  written  after  the  revolt,  but 
if  such  a  condition  of  affairs  existed  then,  it  is  reasonably 
fair  to  assume  that  something  of  the  kind  was  experienced 
before.  The  complaints  of  lax  discipline  became  so  loud 
and  persistent  that  Secretary  Marcy  referred  to<  them,  in 
his  letter  of  June  26,  stating  that  while  he  did  not  give 
credence  to  all  newspaper  reports,  they  could  not  pass  en 
tirely  unnoticed.  A  rigid  enforcement  of  discipline  was 
recommended.3  Later  in  the  year  the  reports  were  con 
firmed,  at  least  by  innuendo,  in  an  official  report  made  by 
Mr.  Thomas  Fitzpatrick,  Indian  agent  for  Upper  Platte 
and  Arkansas,  who  had  visited  Santa  Fe.3 

Governor  Vigil,  however,  gives  quite  a  different  view  of 
the  causes  of  the  revolt.  He  finds  that  one  of  the  leaders, 
Pablo  Montoya,  was  the  head  of  a  similar  insurrection  in 
J837,  when  he  brought  his  followers  to  Santa  Fe  and  then 
basely  deserted  them  for  pay.  In  1843,  tne  Taos  Indians 
rose  and  sacked  the  tithe  granaries,  but  the  government 

1  Quoted   in   H.   H.   Bancroft,  Ariz,   and  N.   Mex.    (Works,  xvii), 
439,  quoting  letter  in  Niles,  Ixxii,  252. 

2  Supra,  123. 

•  H.  Ex.  Doc.,  30  C.  I  S.,  no.  8,  Append.,  240  et  seq.  4 


3i i ]  THE  OCCUPATION  OF  NEW  MEXICO 

took  no  notice  of  the  affair.  Other  pillagings  of  the  same 
year  also  went  unpunished.  The  apathetic  and  criminal 
conduct  of  the  previous  government  in  not  dealing  out  jus 
tice  to  these  offenders  Vigil  declared  to  have  been  the  chief 
cause  of  this  last  insurrection.  * 

The  manner  in  which  the  attack  was  begun  does  not 
indicate  any  special  resentment  against  the  soldiers.  It 
rather  shows  a  predetermined  plan  to  wipe  out  those,  both 
native  and  American,  who  had  accepted  office  under  the 
new  regime.  Resentment  on  the  part  of  those  who  had 
been  displaced  was  only  natural.  Besides,  "  carpet-bag 
gers  "  and  "  scalawags,"  to  borrow  terms  from  later  polit 
ical  history,  are  not  always  held  in  high  esteem,  even  when 
they  have  done  nothing  particularly  criminal. 

Just  what  "  horrible  crimes  "  were  referred  to  by  the 
Mexican  writer  quoted  above  is  not  clear,  but  he  probably 
had  the  excesses  of  the  soldiers  in  mind.  His  statement 
about  the  contribution  of  80,000  pesos  is  unsustained.  In 
deed,  there  is  much  evidence  that  no  such  contribution  was 
levied.  One  historian  tells  us  that  no  requisitions  could  be 
made  upon  the  inhabitants  to  supply  the  wants  of  the  troops, 
as  they  had  been  declared  citizens,  and  that  this  worked 
some  hardships,  as  supplies  could  only  be  had  for  cash, 
with  which  the  army  had  not  been  bountifully  supplied.1 
No  official  report  was  ever  made  of  the  requisition  re 
ferred  to. 

This  was  the  last  revolt.  Later  in  the  year  the  Amer 
ican  forces  were  strengthened.  This  may  have  been  a  very 
strong  reason  for  keeping  quiet,  but  the  natives  appear  to 
have  soon  realized  that  they  really  had  more  of  freedom 
under  the  American  flag,  and  so  became  reconciled  to  the 
change.2 

i  H.  Ex.  Doc.,  30  C.  i  S.,  no.  70,  pp.  21,  23.        *  Prince,  299,  313. 


CHAPTER  II 
THE  MILITARY  ADMINISTRATION  OF  NEW  MEXICO 

I.  THE  STRUGGLE  FOR  A  FREE  GOVERNMENT 

ACCORDING  to  the  Organic  Law,  as  we  have  already 
seen,  Secretary  Vigil  became  governor  upon  the  death  of 
Governor  Bent,  but  he  sought  the  appointment  of  another 
from  Washington.  This,  however,  was  left  to  the  com 
manding  officer.  December  17,  1847,  Vigil  was  appointed 
governor  by  Colonel  Price,  and  served  in  that  capacity  until 
October  n,  1848,  when  Colonel  J.  M.  Washington,  then 
in  command  at  Santa  Fe,  assumed  the  duties  of  "  civil  and 
military  governor."  October  23,  1849,  ne  was  relieved  by 
Colonel  John  Munroe,  who  served  in  that  capacity  until 
the  end  of  the  military  regime.1 

1  N.  Mex.  Blue  Book. 

John  Marshall  Washington  (born  in  Virginia,  1797;  died  at  sea, 
1853)  was  graduated  at  West  Point  in  1814  and  appears  to  have 
served  in  the  army  continuously.  At  the  outbreak  of  the  Mexican 
War  he  held  the  rank  of  captain,  but  was  subsequently  brevetted 
lieutenant-colonel  for  meritorious  conduct  at  Buena  Vista.  From 
June  24  to  December  14,  1847,  he  acted  as  governor  of  Saltillo,  Mexico. 

John  Munroe  (born  in  Scotland,  1796;  died  in  New  Jersey,  1861) 
was  a  classmate  of  Colonel  Washington  at  West  Point;  was  brevetted 
lieutenant-colonel  for  gallantry  at  Monterey,  and  colonel  for  the  same 
reason  at  Buena  Vista. 

Sterling  Price  (born  in  Virginia,  1809;  died  in  St.  Louis,  1867) 
was  a  member  of  Congress  from  Missouri  at  the  outbreak  of  the 
war,  but  resigned  and  raised  the  second  regiment  of  Missouri  cavalry. 
He  was  afterwards  governor  of  Missouri  and  a  general  in  the  Con 
federate  army. 

128  [312 


313]    MILITARY  ADMINISTRATION  OF  NEW  MEXICO    I2g 

Governor  Vigil's  administration  does  not  seem  to  have 
been  very  eventful — nor  lucrative  to  the  office-holders.  The 
governor  called  Secretary  Marcy's  attention  to  the  fact  that 
the  officials  were  to  be  paid  from  the  United  States  treas 
ury,  but  that  no  officer  appeared  to  have  been  empowered 
to  make  such  disbursements.  A  year's  term  had  expired 
September  22.  The  officers  had  performed  their  duties 
faithfully,  duties  sometimes  onerous  and  perplexing,  and 
now  deserved  their  pay.  In  some  cases  they  were  dependent 
upon  it  for  a  living.1  The  Secretary  does  not  appear  to 
have  made  any  reply. 

In  December,  1847,  tne  territorial  legislature,  which 
had  been  elected  according  to  the  Kearny  Code,  met  at 
Santa  Fe  and  continued  in  session  twenty  days.  The  gov 
ernor's  message  gave  prominence  to  the  need  of  public  edu 
cation,  but  of  course  the  legislature  could  not  then  accom 
plish  much  for  that  cause.  The  laws  passed  were  printed 
in  pamphlet  form,  to  which  was  added  Order  No.  10,  im 
posing  a  duty  of  six  per  cent,  on  imports.  February  5, 
1848,  Colonel  Price,  by  special  Order  No.  5,  approved  the 
acts  and  ordered  them  to  be  observed.  However,  another 
order  (No.  10)  abolished  the  offices  named  in  the  statutes 
as  secretary  of  the  territory,  United  States  district  attor 
ney,  and  United  States  marshal.2  One  act  passed  was  to 
authorize  the  election  of  delegates  to  a  convention  to  con 
sider  the  question  of  annexation  to  the  United  States.3 

Whatever  may  have  been  the  efficiency  of  this  civil- 
military  government  for  good  or  its  power  for  oppression, 
the  people  submitted  to  it  as  one  of  the  fortunes  of  war, 
But  after  the  ratification  of  the  treaty  of  peace  with  Mexico, 

1  H.  Ex.  Doc.,  30  C.  i  S.,  no.  70,  p.  35. 

2  N.  Mex.  Blue  Book ;  Report  of  Gov.  N.  Mex.,  1900,  p.  14. 
*  Niles,  Ixxiii,  305. 


MILITARY  GOVERNMENT 


[314 


May  30,  1848,  they  began  to  think  of  the  free  territorial  gov 
ernment  which  had  been  promised  them.  A  distinguished 
United  States  senator,  Mr.  Benton,  of  Missouri,  took  it  upon 
himself  to  give  some  advice  to  the  people  of  California 
and  New  Mexico  on  this  subject.  In  a  letter  of  August 
28,  1848,  he  advised  them  to  meet  in  convention,  provide 
for  a  cheap  and  simple  government,  and  take  care  of  them 
selves  until  Congress  could  provide  for  them.1  The  War 
Department  does  not  appear  to  have  issued  any  orders  up 
to  this  time  defining  the  status  of  affairs  in  New  Mexico. 
In  a  letter  to  Colonel,  then  Brigadier-General,  Price,  dated 
May  22,  1848,  Secretary  Marcy  had  made  some  general 
suggestions,  among  them  that  he  should  see  "  that  whole 
some  regulations  in  relation  to  the  civil  government  should 
be  established,"  in  case  the  province  was  ceded  to  the  United 
States.2 

Seemingly  one  of  the  first  grievances  to  be  dealt  with 
was  connected  with  the  matter  of  taxation.  After  the 
treaty  of  peace,  General  Price  ordered  that  the  six  per 
cent,  imposts  be  still  collected  on  goods  from  the  United 
States.  This  did  not  seem  to  the  inhabitants  to  be  quite 
in  accord  with  the  privileges  of  citizens  of  the  United 
States,  and  they  held  meetings  to  protest  against  it  as  un 
constitutional,  New  Mexico  being  considered  a  part  of  the 
United  States.  General  Price  replied  that  the  tax  had  been 
imposed  to  support  the  civil  government,  that  it  had  been 
approved  by  the  President,  with  whom  the  matter  now 
rested,  and  that,  in  view  of  these  facts,  he  was  not  disposed 
to  modify  or  abolish  it,  however  much  his  feelings  might 
incline  him  to  do  so.8  November  8,  Colonel  Washington, 

1  Niles,  Ixxiv,  244  et  seq. 

2H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  p.  257. 

*  Niles,  Ixxiv,  259  et  seq.  •  *  *     • 


3!5]    MILITARY  ADMINISTRATION  OF  NEW  MEXICO 

now  in  command,  wrote  to  Secretary  Marcy  in  favor  of 
continuing  the  tax,  saying  that  the  government  would  be 
without  funds  if  it  was  not  collected.1  But  the  Secretary  had 
already  received  and  acted  upon  the  protest.  On  October 
12  he  ordered  the  collection  of  imposts  on  goods  from  the 
United  States  to  be  stopped  and  all  funds  so  collected  since 
May  30  to  be  refunded.2  April  3,  1849,  Colonel  Wash 
ington  stopped  the  collection,  "  in  consequence  of  the  views 
of  the  President  in  his  last  annual  message  to  Congress 
relating  to  the  collection  of  customs  in  New  Mexico."  3 

As  the  military  governor  did  not  provide  "  wholesome 
regulations "  satisfactory  to  the  people,  Governor  Vigil 
issued  a  call  for  a  convention,  which  met  at  Santa  Fe 
October  10,  1848.  This  body  "  respectfully  petitioned  Con 
gress  for  the  speedy  organization,  by  law,  of  a  territorial 
government,  one  purely  civil  in  character."  They  repre 
sented  that  the  Kearny  Code  and  statute  laws,  with  a  few 
alterations,  would  be  acceptable.  They  also  asked  to  be 
protected  against  the  introduction  of  slavery.  Copies  were 
forwarded  to  Senators  Benton  and  Clayton  (of  Delaware), 
to  be  presented  by  .them  to  Congress. 

When  the  petition  was  read  in  the  Senate  it  produced 
something  of  a  tempest  in  a  tea-pot.  Mr.  Calhoun  objected 
to  it  as  "  disrespectful "  to  the  people  of  the  slave  States, 
and  a  heated  debate  ensued.  Some  feared  that  "  We,  the 
people  of  New  Mexico,"  simply  meant  fourteen  free-soilers 
who  were  endeavoring  to  impose  upon  Congress.  No  one 
could  give  any  information  as  to  how  truly  representative 
the  convention  had  been,  but  the  petition  was  finally  re- 

1  Sen.  Ex.  Doc.,  31  C.  i  S.,  no.  i,  p.  104. 

2  H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  p.  262. 
•  MS.  in  War  Department. 


J32  MILITARY  GOVERNMENT 

ferred  to  the  Committee  on  Territories,  where  it  seems  to 
have  rested  in  peace.1 

How  far  the  convention  represented  the  people  of  New 
Mexico  it  is  impossible  to  say,  but  it  certainly  was  not  a 
gathering  of  Americans.  Several  members  of  the  existing 
government  signed  the  petition;  most  of  the  other  names 
betray  a  Mexican  origin.1 

Just  three  days  before  this  petition  was  read  in  Congress 
(December  13),  Secretary  Marcy  took  tardy  steps  to  make 
known  to  the  people  of  New  Mexico  the  views  of  the  ad 
ministration  in  regard  to  their  civil  affairs.  He  reaffirmed 
the  position  which  Mr.  Buchanan,  as  Secretary  of  State,  in 
a  previous  letter,  had  taken : 2  that,  at  the  conclusion  of 
peace,  the  military  government  which  had  been  established 
under  the  laws  of  war  ceased  to  derive  any  authority  form 
that  source  of  power,  but  was  continued  as  a  de  facto  gov 
ernment,  with  the  presumed  consent  of  the  governed.  After 
assuring  the  people  that  this  government  could  exercise  no 
powers  inconsistent  with  the  Constitution  of  the  United 
States,  the  Secretary  continued : 

Congress  will  be  in  session  within  sixty  days,  and  their  at 
tention  will  be  at  once  directed  by  the  President  to  the  sub 
ject  of  providing  an  adequate  civil  government  for  this  Terri 
tory  ...  In  the  meantime  it  will  be  the  duty  of  the  commander 
of  our  military  force  to  recognize  the  present  government  de 
facto,  to  respect  the  officers  of  it,  and  to  lend  the  aid  of  the 
military  power  to  protect  the  rights  of  persons  and  property  of 
the  inhabitants  of  the  Territory.  Though  he  had  not  the  right 

1  N.  Mex.  Blue  Book,  99  et  seq.;  Globe,  30  C.  2  S.,  33  et  seq. 

*  Letter  from  Mr.  Buchanan,  Secretary  of  State,  dated  October  7, 
1848,  to  Mr.  Voorhies  on  the  eve  of  his  departure  for  California  as 
agent  of  the  Postoffice  Department.  See  infra,  p.  214,  for  a  lengthy 
quotation  from  this  letter. 


MILITARY  ADMINISTRATION  OF  NEW  MEXICO 

to  change  the  existing  civil  government,  it  will  be  his  duty 
to  regard  it  as  an  existing  government  until  it  is  changed  by 
competent  authority.  He  is  directed  to  quiet  any  uneasiness 
which  may  arise  in  the  minds  of  the  people  on  account  of 
their  anomalous  state  by  assurances  that  the  executive  of  the 
United  States  will  do  what  appertains  to  him  to  remedy  any  in 
convenience  which  they  may  now  experience,  to  secure  their 
rights,  and  to  extend  to  them  in  the  amplest  manner  all  the 
benefits  of  our  political  institutions.1 

A  sentence  in  President  Folk's  message  of  December 
5,  1848,  seems  to  mean  that  Secretary  Buchanan's  letter 
was  sent  to  California  and  New  Mexico  at  the  same  time. 
It  might  have  relieved  some  uneasiness  had  it  been  sent 
still  earlier,  for  in  his  message  of  July  22  the  President 
had  said  that  "  these  temporary  governments  necessarily 
cease  to  exist "  upon  the  exchange  of  the  ratifications  of 
the  treaty  of  peace.  This  statement,  made  as  it  was  with 
out  any  qualifications,  certainly  sounded  as  though  the 
people  were  to  be  left  to  shift  for  themselves.  Senator 
Benton's  letter  of  advice  was  but  an  amplification  of  this 
idea.  But  in  the  message  of  December  5,  the  qualification 
was  added  that  the  temporary  military  governments  had 
ceased  to  derive  any  authority  from  the  rights  of  war.  The 
very  limited  power  possessed  by  the  Executive  had,  however, 
been  exercised  to  preserve  the  inhabitants  from  a  state  of 
anarchy.  These  messages  were  appealed  to  later  by  cer 
tain  leaders  in  justification  of  measures  hereafter  to  be  de 
scribed. 

Briefly  stated,  the  policy  of  the  administration  was 
simply  this:  While,  in  its  opinion,  it  had  no  authority  to 
continue  the  military  governments,  they  would  be  main 
tained  upon  the  "presumed  consent  of  the  governed." 

*H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  PP-  271,  258. 


MILITARY  GOVERNMENT 

What  would  be  done  in  case  that  presumption  was  discov 
ered  to  be  ill-founded  was  not  indicated. 

But  with  a  change  of  administration,  through  the  in 
auguration  of  President  Taylor,  March  5,  1849,  there 
seems  to  have  come  a  slight  change  of  policy  toward  New- 
Mexico.  In  the  spring,  James  S.  Calhoun  went  to  New 
Mexico  as  Indian  agent;  but  upon  his  arrival,  says  a  his 
torian  of  New  Mexico,1  he  declared  that  he  had  secret  in 
structions  from  the  government  at  Washington  to  induce 
the  people  to  form  a  state  government.  Confirmatory  evi 
dence  of  this  statement  is  found  in  the  fact  that  the  ques 
tion  was  discussed  in  public  meetings  shortly  after  his 
arrival  at  Santa  Fe.2  At  one  of  these  meetings  (August 
21,  1849)  Colonel  Washington  was  requested  to  call  a  con 
vention  to  formulate  plans  for  a  government.  In  the  tem 
porary  absence  of  Colonel  Washington,  Lieutenant-Colonel 
B.  L.  Beall  ordered  an  election  to  be  held,  September  10, 
for  delegates  to  such  a  convention. 

This  body  met  at  Santa  Fe,  September  24,  1849,  a  date 
following  rather  close  upon  the  call.  The  writer  can  give 
no  information  as  to  how  the  delegates  were  elected,  but 
they  appear  to  have  been  apportioned  to  the  counties  accord 
ing  to  the  Organic  Law.  The  names  of  nearly  all  the 
nineteen  members  have  the  Mexican  sound.  Five  were  then 
serving  the  existing  government,  and  five  others  were  ex- 
members  of  it.  One  of  these  was  Antonio  J.  Otero,  a 
justice  of  the  supreme  court.  The  secretary  of  the  con 
vention,  J.  H.  Quinn,  who  was  not  a  member,  had  served 
as  "  attorney-general  "  for  the  southern  district.  A.  J.  Mar- 

1  Davis,  EL  Gringo,  in  et  seq.,  quoted  in  Bancroft,  Ariz,  and  N. 
Uex.,  446,  447,  n. 

*Mr.  Calhoun  appears  to  have  arrived  at  Santa  Fe  about  the  last 
of  July.  Ex.  Doc.,  31  C  I  S.,  no.  18,  p.  191. 


3!9]    MILITARY  ADMINISTRATION  OF  NEW  MEXICO 

tinez,  the  president,  a  cura  *  and  teacher  at  Taos,  had  pre 
sided  over  the  convention  of  October  10,  1848. 

The  first  thing  done  by  the  new  convention  after  organiza 
tion  was  to  elect  Hugh  N.  Smith  a  delegate  to  Congress. 
A  committee  of  five  was  then  appointed  to  report  the  basis 
of  a  constitution  for  the  territory  and  to  draw  up  instruc 
tions  for  the  consideration  of  their  delegate.  On  the  second 
day  Colonel  Washington,  "  military  and  civil  governor," 
Secretary  Vigil,  and  the  members  of  the  supreme  court 
were  invited  to  seats  in  the  convention.  The  first  two 
accepted.  As  the  petition  of  grievances  adopted  by  this 
body  was  substantially  adopted  in  a  more  elaborate  paper 
by  a  later  and  more  important  convention,  it  will  be  omitted 
here.  Some  special  features  were  set  forth  which  they 
wished  to  have  incorporated  in  the  territorial  act.  Their 
delegate  was  instructed  to  oppose  the  formation  of  a  terri 
torial  government,  which  was  preferred  to  a  state,  unless 
the  making  of  laws  was  confined  to  a  bicameral  legislature.2 

February  4,  1850,  Mr.  Smith's  credentials  were  pre 
sented  to  the  House  of  Representatives  and  referred  to  the 
Committee  on  Elections.  Two  months  later  the  committee 
reported  against  seating  Mr.  Smith,  because  "  New  Mex 
ico  [though  a  department  of  the  republic  of  Mexico  and 
entitled  to  representation  in  the  national  Congress]  was 
not  acquired  as  a  political  division,  but  as  a  part  of  a  large 
tract  of  country.  .  .  .  Upon  that  transfer  all  political  laws, 
all  governmental  organizations,  ceased  to  have  any  legal 
existence."  *  Attention  was  also  called  to  the  fact  that 
Texas  claimed  a  large  part  of  the  territory.  The  report 
came  up  for  discussion  several  times,  -but  a  resolution  to 

1  The   spelling  regularly   used   in   the  official   correspondence. 

2  Ex.  Doc.,  31  C.  i  S.,  no.  17,  pp.  93  et  seq. 
8  H.  Rep.  of  Com.,  31  C.  i  S.,  no.  220. 


136  MILITARY  GOVERNMENT  [320 

admit  Mr.  Smith  was  finally  (July  19)  laid  on  the  table. 
September  9,  Mr.  Smith  and  Mr.  Albion  W.  Babbitt,  of 
Utah,  were  allowed  a  per  diem  of  five  dollars  up  to  the 
time  of  their  rejection  and  two  thousand  dollars  for  mile 
age.  No  action  was  taken  in  response  to  the  appeal  of 
the  convention. 

The  change  of  policy  in  regard  to  civil  affairs  was  fur 
ther  indicated  in  a  letter,  dated  November  19,  1849,  from 
Mr.  George  W.  Crawford,  Secretary  of  War,  to  Lieutenant- 
Colonel  George  A.  McCall,  then  about  to  join  his  regiment 
in  New  Mexico.  The  Secretary  adverted  to  the  difficulty 
under  which  the  people  labored.  "  To  remove  it  may,  in 
some  degree,  be  the  part  of  the  duty  of  the  officers  of  the 
army,  on  whom,  under  the  necessities  of  the  case,  has  been 
devolved  a  partial  participation  in  their  civil  affairs.  It 
is,  therefore,  proper  that  I  should  say  that  it  is  not  be 
lieved  that  the  people  of  New  Mexico  are  required  to  await 
the  movements  of  the  Federal  government  in  relation  to  a 
plan  of  government  proper  for  the  regulation  of  their  own 
internal  concerns.  The  Constitution  of  the  United  States 
and  the  late  treaty  with  Mexico  guarantee  their  admission 
into  the  Union  of  our  States,  subject  only  to  the  judg 
ment  of  Congress.  Should  the  people  of  New  Mexico  wish 
to  take  any  steps  toward  this  object,  so  important  and 
necessary  to  themselves,  it  will  be  your  duty,  and  the  duty 
of  others  with  whom  you  are  associated,  not  to  thwart, 
but  advance  their  wishes."  * 

It  is  alleged  that  Colonel  McCall,  upon  his  arrival  at 
Santa  Fe  in  the  spring  of  1850,  informed  the  people  that 
no  territorial  government  would  be  granted  by  Congress, 
and  that  President  Taylor  was  determined  that  New  Mexico 
should  be  erected  into  a  state  government,  in  order  to  settle 


1  Ex.  Doc.,  31  C  i  S.,  no.  17,  P-  281. 


32i]    MILITARY  ADMINISTRATION  OF  NEW  MEXICO 

the  question  of  slavery,  and  also  that  of  the  boundary  with 
Texas,  The  delegate  in  Congress,  Mr.  Smith,  wrote  home 
to  the  same  effect. 

April  20,  1850,  a  public  meeting  held  in  the  court-house 
at  Santa  Fe  adopted  resolutions  in  favor  of  a  state  gov 
ernment,  and  requested  Colonel  Munroe,  the  commanding 
officer,  to  call  a  convention.  Meetings  were  also  held  in 
other  counties  for  this  purpose.  Three  days  later  he  com 
plied  by  ordering  the  qualified  electors  to  assemble  May  6, 
and  elect  delegates  to  a  convention  to  be  held  at  Santa  Fe 
May  15,  for  the  purpose  set  forth  at  the  public  meeting. 
President  Fillmore  supposed  that  he  adopted  this  course 
in  consequence  of  the  instructions  contained  in  Secretary 
Crawford's  letter  quoted  above.1 

For  some  time  a  dispute  had  been  in  progress  with  Texas 
in  regard  to  the  boundary.  As  the  region  about  El  Paso 
had  been  included  in  the  ninth  military  district,  Colonel 
Munroe  sent  Major  Van  Home,  with  a  battalion,  to  take 
charge  of  that  post.  When  the  major  arrived  he  was  called 
upon  by  representatives  of  Texas  and  of  New  Mexico  for 
assistance  in  enforcing  the  laws  of  their  respective  gov 
ernments,  especially  in  regard  to  taxation.  In  this  dilemma 
he  asked  the  advice  of  Colonel  Munroe,  who  directed  him 
(December  28,  1849)  to  sustain  the  civil  jurisdiction  of 
New  Mexico  over  such  places  east  of  the  Rio  Grande  and 
south  of  the  ancient  limits  of  New  Mexico  as  Texas  had 
not  taken  under  civil  jurisdiction.  This,  he  explained,  was 
done  in  order  that  the  people  might  have  protection  until 
Texas  officially  assumed  jurisdiction  or  the  boundary  dis 
pute  was  settled.2 

This  order,  simple  enough  on  its  face,  appears  to  have 
been  misunderstood  by  the  Secretary  of  War,  Mr.  Craw- 

1  Sen.  Doc.,  31  C.  i  S.,  no.  60,  p.  2.  *  Ibid.,  no.  67,  p.  8. 


I3g  MILITARY  GOVERNMENT 

ford,  who  disapproved  (March  8,  1850)  of  it  as  "mani 
festly  assuming  to  decide"  the  boundary  dispute,  and 
"  professing  to  extend  a  '  code '  of  laws  which  had  not 
been  accepted  by  the  people  even  while  under  military 
authority."  The  colonel  was  further  informed  that  the 
only  regulations  applicable  to  the  conditions  were  the  laws 
in  force  at  the  time  of  the  conquest  of  New  Mexico,  or 
such  as  Texas  might  establish,  so  far  as  they  were  not  repug 
nant  to  the  Constitution  of  the  United  States.  In  support 
of  this  a  quotation  was  made  from  the  Supreme  Court's 
deliverance  in  the  case  of  the  American  Insurance  Company 
vs.  Canter,  to  the  effect  that  local  laws  remain  until  altered 
by  the  proper  authority.  As  for  New  Mexico,  it  was  pre 
sumed  that  a  government  de  facto  remained,  or  had  been 
established,  resting  upon  the  consent  of  the  inhabitants. 
Such  a  government  he  must  aid  and  respect.1 

Now  it  so  happened  that  a  Major  Robert  S.  Neighbors, 
a  commissioner  of  the  state  of  Texas,  was  in  Santa  Fe  in 
April  for  the  purpose  of  extending  the  jurisdiction  of  his 
state  to  that  place.  An  article  in  the  New  Mexican  extra 
of  April  10,  1850,  calling  upon  the  people  to  form  a  state 
government  and  declare  explicitly  for  or  against  slavery 
(which  was  the  disturbing  factor  in  Congress  in  the  way  of 
territorial  legislation),  attracted  his  attention,  as  also  some 
posters  three  days  later  calling  the  public  meeting  men 
tioned  above.  These  he  inclosed  to  Colonel  Munroe,  April 
15,  and  entered  a  solemn  protest  against  the  contemplated 
action,  claiming  the  territory  for  Texas  until  Texas  had 
extended  her  jurisdiction,  or  until  her  will  was  known.1 
He  also  reported  the  matter  to  Governor  Bell,  of  Texas, 
who  addressed  (June  14)  the  President  about  the  opposition 
to  the  authority  of  his  state,  and  asked  if  Munroe's  procla- 

1  Sen.  Doc.,  31  C.  i  S.,  no.  56,  pp.  3  et  seq. 


323]    MILITARY  ADMINISTRATION  OF  NEW  MEXICO    139 

mation  calling  the  convention  was  approved.  The  Secre 
tary  of  State,  Mr.  Webster,  endeavored  (August  5)  to 
smooth  away  the  difficulties  by  explaining  that  the  order, 
though  approved  as  having  been  issued  apparently  in  con 
sequence  of  the  order  of  the  late  Secretary  of  War,  dated 
November  19,  did  not  invade  the  rights  of  Texas  by 
assuming  any  boundary,  as  the  territory  of  New  Mexico 
was  undefined.1 

The  convention,  however,  did  not  wait  for  any  adjust 
ment  of  difficulties,  but  met  on  the  day  appointed,  May  15. 
Of  the  nineteen  members,  eight  were  then  serving  the  ex 
isting  government  and  four  others  had  been  in  its  ser 
vice,  while  two  had  sat  in  the  legislative  assembly  of 
1847.  The  secretary  of  the  former  convention,  J.  H. 
Quinn,  was  elected  president  of  this  one.  Two  judges  of 
the  supreme  court,  the  attorney-general,  and  Secretary  Vigil 
were  members.  The  last  named  acted  as  one  of  the  sec 
retaries. 

The  writer  has  found  nothing  indicating  any  interfer 
ence  by  the  military  with  the  election  or  with  the  free 
action  of  the  convention.  Colonel  Munroe  did  assume 
authority  to  make  a  slight  change  in  the  election  law,  but 
it  was  one  of  no  consequence.  He  merely  ordered  the  re 
turns  to  be  made  within  four  days  after  the  election  to  the 
secretary  of  the  territory,  instead  of  within  eight  days, 
as  provided  in  the  Kearny  Code.  He  also  exercised  his 
discretionary  power  to  direct  the  prefects  to  appoint  judges 
of  election.  It  is  probably  of  no  significance  that  three 
prefects  were  elected  to  the  convention. 

The  work  of  the  convention  was  finished  so  quickly — 
in  ten  days — that  the  instrument  adopted  must  have  been 
copied  from  the  constitutions  of  some  of  the  states  without 

1  Sen.  Doc.,  31  C.  I   S.,  no.  56,  pp.  7  et  seq. 


MILITARY  GOVERNMENT  [324 

much  change  or  debate.  Only  a  few  provisions  need  be 
noticed.  The  legislature  alone,  by  special  act,  could  grant 
divorce.  This  body  was  also  empowered  to  levy  an  in 
come  tax.  No  soldier  of  the  United  States  army  could  be 
allowed  to  vote  in  the  state.  The  clause  forbidding  the 
introduction  of  slavery  was  adopted  unanimously  and  made 
the  subject  of  a  special  address  to  the  people.  The  east 
ern  boundary  was  fixed  at  the  one  hundredth  parallel,  with 
out  regard  to  the  claims  of  Texas.1 

In  response  to  the  request  of  the  convention,  Colonel 
Munroe  submitted  (May  28)  the  constitution  to  the  people 
to  be  voted  upon  on  June  20;  he  also  ordered  an  election  of 
officers  to  carry  it  into  effect  in  case  of  its  adoption.  How 
ever,  in  doing  this  he  made  the  reservation  that  "all  action 
of  the  governor,  lieutenant-governor,  and  of  the  legislature 
shall  remain  inoperative  until  New  Mexico  be  admitted  as 
a  state  under  said  constitution,  except  such  acts  as  may  be 
necessary  for  the  primary  steps  of  organization,  and  the  pre 
sentation  of  said  constitution  properly  before  the  Congress 
of  the  United  States.  The  present  government  shall  re 
main  in  full  force  until,  by  the  action  of  Congress,  another 
shall  be  substituted."  2 

According  to  the  election  returns,  the  constitution  was 
adopted  by  a  vote  of  8,371  to  39.  Dr.  Henry  Connelly  was 
elected  governor  by  4,604  votes  to  3,465  received  by  his 
opponent,  a  man  by  the  name  of  Baca.  Manuel  Alverez 
received  4,588  votes  for  lieutenant-governor  against  3,465 
for  Ceran  St.  Vrain.3 

The  legislature  to  be  elected  was  ordered  to  convene 
July  i.  Three  days  thereafter  a  joint  committee  informed 

1  Sen.  Doc.,  31  C.  I  S.,  no.  74,  where  the  constitution  is  given  in  full. 

2  Sen.  Doc,  31  C.  2  S.,  no.  i,  pt.  ii,  p.  93. 

3  Sen.  Doc.,  31  C.  2  S.,  no.  26,  p.  16. 


325]    MILITARY  ADMINISTRATION  OF  NEW  MEXICO    I4I 

Colonel  Munroe  that  both  houses  were  organized  and  ready 
to  receive  any  communication  he  had  to  make.  In  reply, 
the  colonel  said  that  he  had  nothing  to  communicate  be 
yond  what  was  contained  in  his  proclamation  of  May  28.* 
For  some  reason  the  governor-elect  failed  to  qualify,  and 
the  lieutenant-governor-elect  took  his  place.  July  4  he  de 
livered  his  inaugural  address  as  governor  of  New  Mexico 
to  the  legislature,  which  had  "  met  for  the  first  time  under 
the  constitution  just  adopted  by  the  people;"  and  a  manly 
inaugural  it  was.2 

July  8,  "  Governor "  Alvarez  sent  a  message  to  the 
"  legislature  "  in  which  he  made  certain  recommendations. 
This  communication  has  an  air  of  soberness,  and  probably 
is  a  fair  index  to  the  condition  of  the  country.  According 
to  it  the  most  pressing  needs  of  the  country  were : 2  Laws 
to  regulate  the  system  of  peonage,  for  the  good  of  both  the 
employer  and  the  employee ;  stringent  laws  against  the  prev 
alent  crime  of  larceny;  a  plan  to  summon  jurymen  to  secure 
to  litigants  a  fair  adjudication  of  cases;  and  some  system 
to  prevent  the  delay  of  cases  from  term  to  term  and  to 
secure  speedy,  uniform,  and  regular  adjudication.  The 
general  diffusion  of  knowledge  through  common  schools 
was  spoken  of  as  the  noblest  gift  of  a  new  state  to  her 
people.  A  stringent  law  to  punish  "  all  public  officers  who 
may  be  so  hardy,  so  lost  to  duty,  as  to  attempt  to  curtail 
or  to  infringe  the  sacred  right"  of  voting  was  recom 
mended  for  consideration. 

Colonel  Munroe  now  seems  to  have  become  alarmed  at 
the  course  political  affairs  were  taking,  and  summoned  the 
"governor"  to  a  conference.  Several  letters  were  ex- 

1  Sen.  Doc.  31  C.  2  S.,  no.  i,  pt.  2,  pp.  94  et  seq. 
*  Ibid.,  31  C.  i   S.,  no.  76,  pp.  5  et  seq. 


142  MILITARY  GOVERNMENT 

changed,  July  11-13,  in  which  the  rights  of  each  in  the 
premises  were  discussed  at  some  length. 

Alvarez  first  gave  Munroe  official  information  that  he 
was  proceeding  to  put  the  state  government  into  operation 
and  had  nominated  the  officers  provided  for  by  the  con 
stitution.  Thereupon  Munroe  called  his  attention  to  the 
restrictions  imposed  in  the  proclamation  of  May  28,  and 
declared  that,  according  to  the  principles  of  the  Constitu 
tion,  the  decisions  of  the  Supreme  Court,  an  extract 
from  a  decision  of  the  Supreme  Court  which  had  been 
transmitted,  and  the  laws  of  Congress,  the  nomination  of 
officers  to  supersede  those  then  in  commission  was  an  act 
unwarranted  by  law.  He  then  announced  that  he  would, 
with  all  the  means  at  his  disposal,  support  the  existing 
government  until  it  was  superseded  by  one  legally  con 
stituted. 

In  reply,  the  "  governor "  said  that  the  election  might 
have  been  held  under  the  proclamation  of  a  private  citizen 
as  well  as  under  that  of  the  military  commandant,  who  had 
no  authority  whatever  in  civil  matters.  The  proclamation 
had  no  binding  force.  Quotations  were  given  from  two  of 
President  Folk's  messages,  and  from  Secretary  Crawford's 
report  of  November  30,  1849,  as  we^  as  a  reference  to 
Colone\  McCall's  instructions,  in  support  of  the  view  that 
the  legality  of  the  military,  or  temporary  civil,  government 
ceased  with  the  treaty  of  peace.  Since  that  time  it  had  only 
been  continued  on  the  "  presumed  consent  of  the  inhabi 
tants."  "  That  consent,"  he  continued,  "  is  now  with 
drawn."  He  then  cited  the  formation  of  a  state  govern 
ment  in  California  as  a  precedent,  and  announced  his  de 
termination  to  proceed  with  the  work  of  organization. 
The  work  of  reform,  so  far  as  a  change  in  the  personnel 
of  the  government  was  concerned,  he  declared  had  al 
ready  been  effected  quietly  and  satisfactorily,  and  no  col- 


327]    MILITARY  ADMINISTRATION  OF  NEW  MEXICO    143 

lisions  would  occur,  unless  provoked  by  military  inter 
ference.1 

The  "legislature,"  in  view  of  the  fact  that  a  letter  signed 
by  John  Munroe,  styling  himself  civil  and  military  gov 
ernor  of  New  Mexico,  had  expressed  a  determination  to 
maintain  the  civil  authorities  previously  administering  the 
government,  and  had  threatened  the  use  of  force  to  resist 
the  effective  operation  of  the  state  government  now  in  com 
plete  organization,  resolved  that  the  contentions  of  "  Gov 
ernor  "  Alvarez  were  correct  and  that  he  should  be  sup 
ported.2  They  also  proceeded  to  enact  laws — among  them, 
to  procure  a  state  seal,  and  to  regulate  the  election  of  state 
officers  and  of  United  States  senators.  Senators  were  then 
elected  and  a  memorial  prepared  for  presentation  to  Con 
gress. 

September  12,  1850,  "  Senator  "  R.  H.  Weightman  ad 
dressed  this  memorial,  together  with  that  of  the  conven 
tion,  and  some  other  papers  to  the  President  of  the  Senate. 
The  memorial  contained  a  rather  severe  arraignment  of  the 
treatment  accorded  to  New  Mexico.  It  represented  that, 
by  the  treaty  of  Guadalupe  Hidalgo,  the  faith  of  the  United 
States  had  been  pledged  to  protect  the  people  of  New 
Mexico  in  their  lives,  liberties,  property,  and  the  free  ex 
ercise  of  their  religion;  and  in  one  year  to  invest  them 
with  the  rights  of  citizens  of  the  United  States,  with  all 
their  privileges  and  immunities,  not  one  of  which  promises 
had  been  kept,  "  owing  to  disturbing  causes  which  have 
embarrassed  the  action  of  Congress."  The  memorial  con 
tinued  : 

The  existing  government  is  indefinite  and  doubtful  in  its 
character,  inefficient  to  enforce  its  laws  for  the  welfare  of  the 
people,  and  unable  to  protect  them  against  the  Indians,  because 

i  Sen.  Doc.,  31  C.  2  S.,  no.  i,  pt.  ii,  95 .et  seq.       *  Ibid.,  105  et  seq. 


144 


MILITARY  GOVERNMENT 


of  which  industry  is  paralyzed,  and  discontent  and  confusion 
prevail  throughout  the  land. 

Since  February  2,  1848,  we  have  groaned  under  a  harsh  law 
forced  upon  us  in  time  of  war  when  we  were  thought  unde 
serving  of  confidence. 

The  military  is  independent  of  and  superior  to  the  civil  power. 

We  have  no  voice  or  influence  in  making  the  laws  by  which 
we  are  governed.  Some  power  other  than  the  Congress  of  the 
United  States  has  subjected  us  to  a  jurisdiction  foreign  to  the 
constitution,  and  unacknowledged  by  our  laws. 

We  are  taxed  without  our  consent,  and  the  taxes,  when  col 
lected,  are  not  appropriated  for  the  public  benefit,  but  are  em 
bezzled  by  officers  irresponsible  to  the  people. 

Judges  are  unlearned  in  the  law.  Prefects  and  alcaldes  im 
pose  fines  and  incarcerate  without  the  intervention  of  juries. 

Alcaldes  assail  the  right  of  the  people  freely  to  exercise  their 
religion  without  restriction,  and  dictate  to  congregations  what 
priests  shall  administer  the  sacraments  of  the  church. 

We  have  been  encouraged  by  the  President  to  set  up  a  state 
government,  and  in  so  doing  have  done  nothing  inconsistent 
with  respect  to  the  Government  of  the  United  States. 

In  presenting  the  prayer  for  statehood,  "  Senator " 
Weightman  used  high-flown  language  about  freedom  and 
tyranny,  and  quoted  the  Declaration  of  Independence  and 
the  Constitution  to  the  effect  that  Congress  had  not  the 
right,  though  they  might  have  the  power,  to  deny  the 
petition.  Exercise  of  the  power  would  be  tyranny.  The 
colonial  system  had  been  represented  to  his  people  as  re 
pugnant  to  the  Constitution  and  laws  of  the  United  States. 
The  question  of  the  capacity  of  the  people  of  New  Mexico 
for  self-government  was  not  a  subject  for  discussion,  as 
the  doctrine  of  the  incapacity  of  the  people  was  not  of  re 
publican,  but  of  monarchial  origin.1 

Kt         '      i  '•'••. 

1  Sen.  Doc.,  31  C.  I  S.,  no.  76. 


329]    MILITARY  ADMINISTRATION  OF  NEW  MEXICO    145 

Following  the  "  senator  "  to  Washington  has  carried  us 
a  little  in  advance  of  affairs  in  New  Mexico.  There  gov 
ernment  by  proclamation  and  counter-proclamation  was  still 
going  on.  July  20,  "  Governor  "  Alvarez,  in  virtue  of  an 
act  of  the  "  legislature/'  approved  July  12,  ordered  an 
election  to  be  held  the  second  [Monday]  of  August  to  fill 
the  county  offices.  Three  days  later  Vigil,  who,  though  he 
had  sat  in  the  constitutional  convention,  continued  to  act 
as  secretary  under  the  military  government,  ordered  the  pre 
fects  to  disregard  this  proclamation  and  to  transmit  to  him 
any  further  communications  from  the  same  source.  August 
8,  the  "  governor,"  by  virtue  of  a  joint  resolution  of  July 
15,  issued  a  proclamation  to  the  effect  that  no  officer  elected, 
or  thereafter  to  be  elected,  or  holding  by  appointment  under 
the  state  of  New  Mexico,  should  attempt  to  exercise  the 
functions  of  his  office  until  after  November  i,  1850,  or 
until  duly  commissioned  to  act  as  such.  The  next  day  Sec 
retary  Vigil  came  out  with  another  circular  to  the  prefects 
in  which  they  were  ordered  not  to  oppose,  or  take  any  part 
in  the  election  of  August  12,  in  their  official  character; 
neither  were  they  to  recognize  any  person  elected  as  having 
any  right  to  office  until  the  matter  was  sanctioned  by 
competent  authority.1  While  these  papers  were  signed  by 
Vigil,  they  were  issued  "  by  order  of  John  Munroe,  mili 
tary  and  civil  governor  of  the  Territory  of  New  Mexico." 

In  reporting  (July  16)  to  Washington  the  resolutions 
of  the  "  legislature "  endorsing  the  action  of  the  "  gov 
ernor,"  Colonel  Munroe  took  occasion  to  say  that  the  New 
Mexicans  in  the  "legislature"  would  have  adopted  a  policy 
of  reasonable  delay,  had  not  opinions  been  prepared  for  them 
there  by  those  who  had  no  ties  binding  them  to  the  terri 
tory,  except  the  possession  and  expectation  of  office,  and 

1  Sen.  Doc.,  31  C.  2  S.,  no.  i,  pt.  ii,  102  et  seq. 


I46  MILITARY  GOVERNMENT 

who,  if  any  serious  consequences  arose  from  the  adoption 
of  their  advice,  would  be  found  safely  beyond  its  limits.1 

When  this  communication  was  received  it  was  submitted 
to  President  Fillmore,  who  directed  the  Secretary  of  War, 
Mr.  Conrad,  to  make  a  reply  (September  10),  the  sub 
stance  of  which  was:  It  is  desirable  to  keep  the  civil  and 
military  departments  of  the  government  separate  and  dis 
tinct.  Temporary  departure  from  this  principle  may  be  re 
quired  occasionally,  but  it  should  close  with  the  passing  of 
the  necessity.  No  necessity  now  seems  to  exist  in  New 
Mexico.  The  government  formed  was  without  authority  of 
Congress,  but  its  members  do  not  appear  to  have  any  designs 
of  acting  against  the  United  States,  hence  the  President 
does  not  feel  called  upon  to  suppress  it  by  military  force. 
He  regrets  the  misunderstanding  which  has  arisen  there, 
but  Congress  yesterday  provided  for  a  territorial  gov 
ernment,  and  this  will  be  put  into  operation  as  soon  as 
possible.  This  government  is  conditioned  upon  the  agree 
ment  of  Texas  to  the  proposed  boundary.  Meanwhile  you 
will  abstain  from  all  further  interference  in  the  civil  or 
political  affairs  of  New  Mexico,  unless  the  inhabitants,  or 
a  portion  of  them,  should  demand  of  you  the  protection 
guaranteed  by  Article  IX  of  the  treaty  of  Guadelupe 
Hidalgo.2 

This  certainly  was  a  remarkable  order.  The  colonel 
was  directed  not  to  meddle  with  civil  and  political  affairs, 
but  no  order  was  given  as  to  who  should  direct  the  affairs 
of  the  territory.  Had  the  military  dissolved,  the  only  thing 
left  would  have  been  the  Alvarez  "  state "  government. 
Now  the  act  of  Congress  creating  a  territorial  government 
had  robbed  this  body  of  all  possibility  of  subsequent  legal- 

1  Sen.  Doc.,  31  C.  2  S.,  no.  I,  pt.  ii,  p.  92. 

2  Ibid.,  107  et  seq. 


33 1  ]    MILITARY  ADMINISTRATION  OF  NEW  MEXICO 

ization.  President  Taylor  had  told  the  people  that  they 
might  set  up  the  machinery  of  a  state  government,  subject 
to  legalization  in  the  form  of  admission  to  the  Union  by 
act  of  Congress.  But  here  President  Fillmore  seems  to  go 
further  and  say  that  the  people  of  a  territory  not  yet  organ 
ized  by  an  act  of  Congress  have  the  right  to  alter  or 
abolish  the  existing  government  and  institute  a  new  one, 
"  laying  its  foundations  on  such  principles,  and  organizing 
its  powers  in  such  form,  as  to  them  shall  seem  most  likely 
to  effect  their  safety  and  happiness."  Not  even  Mr.  Doug 
lass  could  have  improved  upon  this  except  by  saying  that 
"  popular  sovereignty  "  was  a  right  which  not  even  Con 
gress  could  abridge. 

However,  in  spite  of  these  instructions,  the  colonel  still 
continued  to  style  himself  "  civil  and  military  governor." 
The  Alvarez  government  appears  to  have  dissolved  with 
out  causing  any  further  trouble. 

The  agreement  of  Texas  to  the  proposed  boundary  was 
transmitted  to  Congress  December  13,  1850.  The  terri 
torial  government  of  New  Mexico  went  into  operation  about 
March  3,  1851,  at  which  time  the  civil  functions  of  the 
commanding  officer  ceased.1 

The  territorial  legislature  recognized  the  former  mili 
tary  government  by  passing  acts  (June- July,  1851)  articu 
lating  the  new  government  with  the  old.  A  great  part  of 
the  Kearny  Code  was  adopted,  and  remains  in  force  to 
this  day.  Provision  was  made  that  bonds,  writs,  and  pro 
cesses  begun  in  the  courts  established  under  it  should  be 
carried  to  final  adjudication  in  the  new  courts  as  they 
would  have  been  in  the  old. 

Quotations  have  been  given  here  and  there  which  show 

i  Ex.  Doc.,  32  C.  i  S.,  no.  71,  p.  2. 


148  MILITARY  GOVERNMENT 

that  many  thought  that  the  legality  of  the  provisional  mili 
tary  government  ceased  with  the  treaty  of  peace.  Presi 
dents  Polk  and  Taylor  thought  that  the  de  facto  govern 
ment  continued  of  necessity,  but  President  Fillmore  seems 
to  have  thought  that  even  this  basis  of  legality  had  van 
ished  when  the  people  organized  a  government  for  them 
selves.  Upon  the  general  question  of  legality  after  the 
treaty  of  peace,  without  any  reference  to  Fillmore' s  posi 
tion,  we  have  a  deliverance  from  the  Supreme  Court. 

The  case  in  question  arose  under  a  law  embodied  in  the 
Kearny  Code,  the  details .  of  which  do  not  concern  us. 
July  30,  1849,  suit  was  instituted  under  this  law  by  James 
J.  Webb  against  Eugene  Leitensdorfer  and  Joab  Houghton, 
the  last  named  a  member  of  the  supreme  court  of  the  mili 
tary  government.  By  various  delays  judgment  was  de 
ferred  until  the  territorial  courts  were  organized.  In 
September,  1851,  the  case  was  transferred  to  one  of  the 
new  courts,  where  judgment  was  rendered  in  favor  of  the 
plaintiff.  On  appeal,  this  judgment  was  affirmed  by  the 
supreme  court  of  the  territory.  The  case  was  now  carried 
on  a  writ  of  error  to  the  United  States  Supreme  Court. 
There  the  defendants,  now  the  plaintiffs  in  error,  appear 
to  have  held  that,  whatever  may  have  been  the  rights  of  the 
conqueror  as  such,  these  were  all  terminated  by  the  termin 
ation  of  hostilities,  and  that  with  the  close  of  the  contest 
every  institution  which  had  been  overthrown  or  suspended 
was  revived  and  re-established.  Mr.  Justice  Daniel,  in  de 
livering  the  opinion  of  the  court,  said : 

The  fallacy  of  this  pretension  is  exposed  by  the  fact  that 
the  territory  never  was  relinquished  by  the  conqueror,  nor  re 
stored  to  its  original  condition  of  allegiance,  but  was  retained 
by  the  occupant  until  possession  was  matured  into  absolute 


333]    MILITARY  ADMINISTRATION  OF  NEW  MEXICO    149 

permanent  dominion  and  sovereignty ;  and  this,  too,  under  the 
settled  purpose  of  the  United  States  never  to  relinquish  the 
possession  acquired  by  arms.  We  conclude,  therefore,  that  the 
ordinances  and  institutions  of  the  provisional  government 
would  be  revoked  or  modified  by  the  United  States  alone,  either 
by  direct  legislation  on  the  part  of  Congress,  or  by  that  of  the 
Territorial  Government  in  the  exercise  of  powers  delegated 
by  Congress.1 

II.  REVIEW  OF  THE  MILITARY  REGIME 

One  of  the  first  things  promised  the  people  of  New 
Mexico  was  protection  in  life,  liberty,  and  property,  but  the 
failure  to  provide  this  very  protection  was  the  principal 
indictment  against  the  military  government  in  the  various 
petitions  sent  to  Congress.  And  these  complaints  are  well 
sustained  by  official  testimony. 

Not  long  after  the  suppression  of  the  insurrection  the 
Indians  began  to  give  trouble.  July  5,  1847,  an  officer  at 
Santa  Fe  says :  "  The  Indians  are  depredating  on  the  citi 
zens  in  every  direction,  and  no  steps  have  been  taken  to 
suppress  their  incursions;  they  have  become  very  bold,  and 
a  day  or  two  since  drove  off  many  animals  eleven  miles 
from  this  place."  2  A  few  weeks  later  (September  18) 
Thomas  Fitzpatrick,  who,  as  Indian  agent,  had  traveled 
over  parts  of  New  Mexico,  wrote :  "  New  Mexico  is  in  a 
deplorable  condition.  The  Indians  are  ravaging  the  coun 
try  and  carrying  off  inhabitants  to  a  much  greater  extent 
than  heretofore.  They  carry  their  hostilities  (which  seems 
very  strange)  almost  within  gunshot  of  the  headquarters  of 

1  Leitensdorfer  vs.  Webb,  20  Howard,  176  et  seq. 

2  H.  Ex.  Doc.,  30  C.  2  S.,  no.  i,  p.  220. 


150  MILITARY  GOVERNMENT 

the  army  of  the  west,  except  when  they  want  presents, 
when  they  are  as  gentle  as  lambs."  * 

What  really  appeared  strange  to  Mr.  Fitzpatrick  seems 
to  have  been  the  wretched  discipline  maintained  among  the 
troops.  They  were  few  enough  in  number  to  begin  with, 
and  this  condition  subtracted  the  more  from  their  efficiency. 
An  effort  was  made  to  remedy  the  lack  of  a  sufficient  force 
by  giving  permission  to  the  people  of  New  Mexico  to 
march  against  the  Navajoes.  After  the  treaty  of  peace 
they  were  commanded  to  organize  and  hold  themselves  in 
readiness  to  march  against  the  Indians,  repel  incursions, 
and  rescue  stolen  property.2  Toward  the  close  of  1848, 
Colonel  Washington  reported  a  state  of  comparative  peace 
and  quietude,  but  in  the  following  spring  the  Indian  raids 
broke  out  afresh  and  he  had  to  call  for  more  volunteers. 
The  New  Mexicans  responded  readily,  and  four  companies 
were  mustered  into  service.  With  the  force  now  at  his 
command  Colonel  Washington  made  a  rather  lengthy  cam 
paign  and  succeeded  in  bringing  the  Navajoes  to  terms 
with  a  treaty.3 

But  in  1850,  the  "  legislature "  complained  that  the 
Indians  were  again  robbing,  killing,  and  carrying  the 
people  into  captivity.  About  the  same  time  Colonel  McCall 
reported  a  deplorable  condition  of  affairs.  He  declared 
that  the  population  had  decreased  somewhat  in  the  last  six 
years.  Mining,  stock-raising,  and  agriculture  were  the  chief 
pursuits;  but  little  was  then  being  done  in  the  first,  while 
the  second  was  much  decreased — both  because  of  Indian 
raids.  Hillsides  and  plains  formerly  covered  with  sheep 
had  become  bare,  so  that  less  than  a  thousand  sheep  were 

1  H.  Ex.  Doc.,  30  C.  i  S.,  no.  8,  App.,  240. 

2  H.  Rep.  Com.,  36  C.  i  S.,  no.  537. 

8  H.  Ex.  Doc.,  31  C.  i  S.,  no.  5,  pp.  104  et  seq. 


335]    MILITARY  ADMINISTRATION  OF  NEW  MEXICO    i$i 

sent  from  districts  which  formerly  sent  them  by  the  hun 
dred  thousand.  Still  the  plundering  went  on,  chiefly  by 
Navajos  and  Apaches,  even  in  the  close  vicinity  of  the 
military  posts.  The  Indians  pounced  down  and  were  away 
before  the  loss  was  known.  Within  three  months  between 
fifteen  and  twenty  thousand  sheep  and  several  hundred 
cattle  had  been  carried  off.  Statistics  were  hard  to  obtain, 
but  it  seemed  certain  that  eighty-three  people  had  been  killed 
and  thirteen  captured,  and  these  numbers  might  be  safely 
increased  by  from  fifteen  to  twenty  per  cent.  The  property 
loss  (chiefly  in  sheep,  mules,  cattle,  and  horses)  was  esti 
mated  at  $114,050,  which  should  be  increased  by  fifty  per 
cent.1 

The  letters  written  by  Mr.  Calhoun  from  Santa  Fe  in 
the  latter  part  of  1849  made  no  direct  charges  against  the 
military,  but  one  can  easily  read  in  them  hints  at  criminal 
inactivity  on  the  part  of  Colonel  Munroe.2  One  cause  of 
Indian  activity  he  finds  in  the  traveling  merchants  and 
"  wicked  priests,"  who  were  inciting  them  to  rapine  and 
murder  with  tales  of  Mexican  reconquest  and  threats  of 
extermination  of  all  found  claiming  the  protection  of  the 
United  States.3 

The  day  following  the  date  of  Colonel  McCall's  letter, 
Colonel  Munroe  sent  in  a  report,  from  which  we  have  al 
ready  quoted.  In  this  he  also  said :  "  As  charges,  both  gen 
eral  and  specific,  have  been  made,  and  will  be  urged  at 
Washington,  against  those  who  have  administered  the 
affairs  of  this  Territoiry,  an  investigation  into  their  con 
duct  is  due  both  to  the  people  and  themselves.  If  such  an 
investigation  should  be  ordered,  I  am  satisfied  it  will  be 
shown  that  the  persons  and  property  of  the  inhabitants  of 

1  Sen.  Ex.  Doc.,  31  C.  2  S.,  no.  26,  pp.  5  et  seq. 

2  H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  pp.  228  et  seq.  *  Ibid.,  220. 


I52  MILITARY  GOVERNMENT  [336 

New  Mexico  have  been  protected  to  the  full  extent  of  the 
guarantee  provided  by  the  treaty  with  Mexico."  1 

A  few  weeks  after  he  ceased  to  act  as  governor, 
Colonel  Munroe  used  some  strong  language  about  the 
various  statements  emanating  from  persons  in  the  Ter 
ritory  and  circulated  in  the  public  prints  of  the  United 
States,  statements  which,  he  declared,  teemed  with 
direct  violations  of  truth,  or  with  gross  misrepresen 
tations  intentionally  made,  having  in  view  the  disparage 
ment  of  the  military  force  and  more  particularly  the  com 
manding  officers.  The  object  of  this  was,  he  thought,  to 
prepare  the  public  mind  and  Congress  to  consider  favor 
ably  the  claims  proposed  to  be  set  up  for  the  payment  for 
all  the  stock  which  had  been,  or  which  would  be  repre 
sented  to  have  been,  driven  off  by  the  Indians  through  the 
supposed  neglect  of  the  government  to  give  the  protection 
which  had  been  promised  to  the  people  of  the  Territory. 
Another  object  was  to  disparage  the  regular  army,  in  the 
expectation  that  Congress  would  authorize  the  creation  of 
a  local  force  as  a  substitute,  or  partial  substitute,  the  official 
positions  of  which  there  was  already  a  surplus  of  aspirants 
ready  to  fill.2 

Possibly  there  was  some  justification  for  the  last  charge. 
August  31,  1851,  Mr.  Calhoun,  then  governor,  wrote  the 
Secretary  of  War  that  there  would  be  no  quiet  in  the  Terri 
tory  until  the  Executive  was  authorized  to  call  out  the 
militia.3 

Several  months  before  Colonel  McCall's  report  was  writ 
ten,  President  Taylor  said :  "It  is  undoubtedly  true  that 
the  property,  lives,  liberties,  and  religion  of  the  people  of 
New  Mexico  are  better  protected  than  they  ever  were  be- 

1  Sen.  Ex.  Doc.,  31  C.  2  S.,  no.  I,  pt.  ii,  92. 

2  Sen.  Ex.  Doc.,  32  C.  i  S.,  no.  I,  p.  127.  3  Ibid.,  36. 


337]    MILITARY  ADMINISTRATION  OF  NEW  MEXICO    153 

fore  the  treaty  of  cession."  x  Possibly  later  reports  would 
have  caused  him  to  change  his  opinion.  It  is  true  that 
the  plundering  had  been  going  on  for  a  long  time — twenty 
years,  according  to  Colonel  McCall.  The  Navajoes,  said 
he,  gave  as  their  only  reason  for  not  exterminating  the 
New  Mexicans  long  before  that  it  was  to  their  interest  to 
keep  them  as  shepherds.  But  the  evidence  goes  to  show 
that  the  losses  sustained  at  the  hands  of  the  Indians  had 
increased  considerably  within  the  last  few  years. 

Yet  even  this  may  have  been  true  and  the  fault  not  have 
been  wholly  that  of  the  commanding  officer.  The  military 
force  at  his  disposal  was  never  adequate,  and  this  fact  was 
constantly  kept  before  the  administration.  While  the  war 
with  Mexico  lasted  only  small  garrisons  appear  to  have 
been  kept  in  New  Mexico.  A  few  reinforcements  were  sent 
in,  but  the  force  was  again  weakened  by  withdrawals  and 
by  the  return  home  of  volunteers  whose  term  of  enlistment 
had  expired.  Colonel  Washington  made  his  expedition  in 
1849  with  only  325  men>  °f  whom  54  were  Pueblo  In 
dians.  About  the  close  of  that  year  only  885  were  stationed 
in  the  seven  posts  occupied  in  New  Mexico.2  Later  the 
number  was  raised  to  1,739,  but  this  force  Colonel  McCall 
declared  insufficient  by  about  500  men.  The  failure  to  re 
spond  to  these  repeated  calls  for  more  troops  reveals  a 
reprehensible  carelessness  on  the  part  of  the  administration, 
if  more  troops  were  to  be  had;  if  not,  it  accentuates  the 
folly  of  waging  a  war  of  conquest  with  volunteers  whose 
term  of  enlistment  expires  with  the  treaty  of  peace. 

But  with  all  this,  it  must  be  remembered  that  to  protect 
from  savage  foes  whom  it  is  not  allowed  to  exterminate  is 
no  easy  task.  The  depredations  of  these  Indians  have  con- 

1  Message   of   January   23,    1850. 

2  Sen.   Ex.   Doc.,  31   C.     I    S.,   no.   i,  p.    184. 


I54  MILITARY  GOVERNMENT  [338 

tinued  at  intervals  down  to  times  within  the  memory  of 
men  still  young,  and  our  government  has  hardly  been  ac 
cused  of  negligence  in  dealing  with  them. 

The  charges  against  the  judicial  arm  of  the  government 
have  already  been  quoted.  How  far  these  generalizations 
were  true  it  is  impossible  to  say.  That  one  member  of  the 
supreme  court  was  not  above  taking  advantage  of  the  tech 
nicalities  of  the  law  is  shown  by  the  position  assumed  by  Joab 
Houghton  as  one  of  the  defendants  in  the  case  of  Leitens- 
dorfer  vs.  Webb,  referred  to  above.  One  is  not  surprised 
to  hear  that  the  judges  were  unlearned  in  the  law.  Indeed, 
it  is  doubtful  if  many  of  the  citizens  had  much  learning  in 
the  law  or  anything  else,  if  we  may  trust  Colonel  McCall 
as  authority.  If  any  of  the  judges  were  Americans,  it  was 
hardly  to  be  expected  that  they  should  have  any  profound 
knowledge  of  the  Spanish  law. 

Incarceration  without  a  jury  was  nothing  new  to  the 
Spanish  law,  but  Kearny's  Organic  Law  provided  that 
the  right  of  trial  by  jury  should  forever  remain  inviolate, 
and  his  laws  provided  a  regular  plan  for  summoning  jurors. 
Curiously  enough,  we  find  "  Governor  "  Alvarez,  in  July, 
1850,  calling  the  attention  of  the  "legislature"  to  the 
need  of  a  plan  for  this  very  purpose.  This  would  seem  to 
indicate  that  he  did  not  know  of  the  provision  in  the  Kearny 
Code,  or  else  chose  to  ignore  it.  It  also  suggests  that  pos 
sibly  the  law  had  not  been  strictly  observed.  That  some 
juries  had  been  summoned  is  well  attested.  The  insurrec 
tionists  of  1847  were  trie(*  by  jury.  At  least  one  civil  suit 
decided  by  a  jury  came  up  on  appeal  before  the  supreme 
court  of  the  Territory  as  organized  by  Congress.  The  orig 
inal  decision  was  affirmed,  with  only  a  slight  correction  in 
the  amount  for  which  judgment  was  rendered.1 
1  i  N.  Mex.  Reports,  19  et  seq. 


339]    MILITARY  ADMINISTRATION  OF  NEW  MEXICO 

The  charges  against  the  prefects  and  alcaldes,  so  far  as 
related  to  their  dealings  with  the  Pueblo  Indians,  are  sub 
stantiated  by  official  evidence.  Said  Mr.  Calhoun :  "  It  is 
a  matter  of  no  moment  whether  an  Indian  is  in  debt  or 
not;  a  judgment  can  be  obtained  against  him,  which  must 
be  paid  in  cash,  or  the  spirit  of  the  6th  article  of  the  ordi 
nance  of  1787  is  immediately  violated.  Again,  the  prefects 
...  do  not,  in  my  opinion,  use  their  authority,  whatever 
it  may  be,  without  abusing  it.  Contributions  upon  their 
[the  Pueblos']  labor  and  property  are  frequently  made  by 
the  law,  or  laws,  which  alcaldes  and  prefects  manufacture 
to  suit  the  occasion."  The  charges,  however,  did  not  apply 
to  all.1 

Nothing  has  been  found  either  to  substantiate  or  to  re 
fute  the  charges  against  these  officers  in  regard  to  inter 
ference  with  religious  worship. 

Financially  the  military  regime  appears  to  have  been  a 
dismal  failure.  The  imposition  of  taxes  without  the  con 
sent  of  the  law-making  body,  and  the  embezzlement  of  the 
public  funds,  were  among  the  charges  made  against  it  by  the 
"  legislature  "  of  1850.  We  have  already  seen  that  a  duty 
of  six  per  cent,  was  levied  on  imports  soon  after  the  occu 
pation  and  was  continued  until  the  treaty  of  peace.2  From 
a  letter  written  by  Colonel  Munroe,  December  30,  1850, 
we  learn  that  "  $16,073.32  has  been  received  into  the  Terri 
torial  treasury  from  the  six  per  cent,  and  the  twenty  per 
cent,  imposts,  and  expended  for  the  general  prosperity  of 
the  Territory."  3  Nothing  else  relating  to  the  twenty  per 
cent,  impost  has  come  to  the  notice  of  the  writer.  In  1849 
the  Secretary  of  War  made  a  report  of  the  Mexican  Mili 
tary  Contribution  Fund,  but  does  not  appear  to  have  men- 

1  H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  P-  216.  2  Supra,  127. 

9  Sen.  Ex.  Doc.,  31  C.  2  S.,  no.  71,  p.  2. 


MILITARY  GOVERNMENT  [340 

tioned  any  funds  collected  or  disbursed  at  Santa  Fe.  1  They 
evidently  were  paid  into  the  Territorial  treasury  and  no  re 
port  was  made  of  them.  The  Kearny  Code  provided  a  more 
or  less  elaborate  scheme  of  taxation,  both  municipal  and 
Territorial.  It  probably  was  some  of  these  taxes,  the  col 
lection  of  which  was  resisted  in  the  strip  of  country  north 
of  El  Paso. 2  What  was  realized  from  this  source  is  not 
clear.  The  sum  of  $12,098.64  was  paid  from  the  treasury 
on  the  salaries  of  civil  officials.  This  seems  to  have  formed 
no  part  of  the  $16,073.32  expended  for  the  "  general  pros 
perity  of  the  Territory,"  whatever  that  may  have  been; 
consequently  it  must  have  been  raised  from  some  source 
other  than  the  imposts. 

The  prosperity  of  the  office-holders  does  not  appear  to 
have  kept  pace  with  that  of  the  Territory,  for  Munroe's 
letter  was  accompanied  by  a  tabular  statement  of  salaries 
due  the  officers  of  the  government,  with  an  appeal  for  their 
payment  as  an  act  of  long-deferred  justice.  The  total 
amount  due  was  represented  as  $31,562.37.  This  was  for 
services  up  to  March  22,  1851.  Accounts  were  included 
for  the  United  States  district  attorney  and  marshal,  though 
these  offices  were  considered  abolished  by  the  order  of  the 
War  Department,  January  n,  1847.  Still  the  men  were 
recommended  to  Congress  for  payment  up  to  June  22,  1847, 
as  they  had  discharged  their  duties  in  good  faith.  Secre 
tary  Conrad  included  $4,391.30  for  the  military  officers  act 
ing  in  a  civil  capacity — evidently  only  the  governors — 
bringing  the  total  up  to  $35,953.67,  to  which  he  also  added 
$650  for  certain  officers  up  to  June  22,  1851,  though  these 
did  not  come  under  the  military  regime.  Besides  this  there 
was  due  the  territorial  treasury  the  sum  of  $12,098.64, 
which  had  been  used  to  pay  salaries  made  payable  by  the 

1  H.  Ex.  Doc.,  30  C.  2  S.,  no.  47-  2  Supra,  137. 


341  ]    MILITARY  ADMINISTRATION  OF  NEW  MEXICO    i$j 

Kearny  Code  at  the  treasury  of  the  United  States.  A 
few  of  the  officers  had  received  their  salaries  in  full,  some 
only  in  part;  others  had  received  nothing.  The  salaries 
ranged  from  $2,000  per  annum  down,  the  highest  being  that 
of  the  governor.1 

In  1852  the  Senate  asked  why  these  accounts  had  not 
been  paid  out  of  the  balance  in  the  treasury  belonging  to 
the  Mexican  military  contribution  fund.  To  this  Secretary 
Conrad  replied  that  he  knew  of  no  authority  in  his  or  any 
other  department  to  make  such  payment.1  July  17,  1854, 
Congress  authorized  the  Secretary  of  War  to  pay  the  offi 
cers  from  September  22,  1846,  to  March  3^  1851,  at  the 
rate  fixed  by  the  Kearny  Code,  deducting  such  sums  as 
had  already  been  paid  by  the  Territory,  and  allowing  noth 
ing  to  military  officers  for  performing  civil  functions.  The 
Territorial  treasury  does  not  appear  to  have  been  reim 
bursed  for  the  accounts  already  paid. 

The  individual  claims  for  service  against  the  Indians 
were  settled  much  earlier.  February  27,  1851,  Congress 
appropriated  $135,530.20  to  pay  the  New  Mexican  volun 
teers  who  had  served  in  the  Territory.  Other  claims  aris 
ing  from  this  service,  believed1  by  Secretary  Belknap  to  be 
fraudulent,  were  before  Congress  as  late  as  i874.2 

One  thing  seems  certain,  that  the  Territorial  treasury 
was  not  left  in  a  flourishing  condition.  October  19,  1851, 
Mr.  Calhoun  reported  that  there  was  not  a  dollar  in  it, 
and  that  the  collection  of  taxes  was  resisted,  with  no  pros 
pect  of  an  early  adjustment  of  the  question.3 

As  to  the  moral  influence  of  the  military,  the  testimony 

1  Sen.  Ex.  Doc.,  32  C.  I  S.,  no.  71,  pp.  i  et  seq. 

2  See   H.    Rep.    Com.,   36   C.    i    S.,   no.    537;    H.    Ex.   Doc.,   43   C. 
I  S.,  no.  272. 

*  Sen.  Ex.  Doc.,  32  C  i  S.,  no.  71,  p.  3- 


I58  MILITARY  GOVERNMENT 

is  a  little  conflicting — or  perhaps  we  should  say  that  the 
direction  and  character  of  the  influence  changed.  Mr.  Fitz- 
patrick,  in  the  letter  already  quoted,1  said :  "  Many  are 
surprised  at  the  death-rate  of  the  volunteers  in  a  climate 
known  to  be  so  healthy.  Let  them  observe  for  one  week 
the  life  led  in  Santa  Fe  and  they  will  be  astonished  that  so 
many  have  lived."  The  troops  then  at  Santa  Fe  were  the 
Missouri  volunteers,  who  had  enlisted  for  only  one  year. 
At  the  expiration  of  their  service  they  went  home,  leaving 
no  very  savory  reputation  behind  them,  and  were  replaced 
by  others.  Whether  the  new  troops  were  less  subject  to 
temptation,  or  were  better  disciplined,  or  whether  there  was 
any  difference  in  their  conduct,  the  writer  cannot  say,  but 
later  evidence  is  to  the  effect  that  general  moral  and  social 
conditions  showed  some  improvement. 

September  4,  1847,  tne  first  English  newspaper  was 
started  at  Santa  Fe.  A  little  more  than  two  years  later  the 
first  number  of  the  New  Mexican,  which  is  still  published, 
made  its  appearance.  In  December,  1847,  Governor  Vigil 
devoted  one  section  of  his  message  to  the  legislature  to 
the  educational  needs  of  the  country.  In  the  following 
August  the  first  English  school  was  opened  at  Santa  Fe, 
and  the  next  year  another  was  opened  by  a  Baptist  mis 
sionary.2 

Not  quite  four  years  after  the  conquest  Colonel  McCall, 
in  the  report  already  quoted  several  times,  said :  "  Changes 
in  the  habits  and  customs  of  the  natives,  due  to  intercourse 
with  our  people,  are  already  perceptible.  This  is  shown 
in  Santa  Fe  in  the  diminution  of  filth  in  the  streets,  im 
proved  dress  and  personal  cleanliness  of  the  people,  together 
with  the  cloaking  of  immorality,  showing  that  precept  and 
example  are  not  altogether  thrown  away  upon  them/' 

1  Supra,  149.  2  N.  Mex.  Blue  Book. 


CHAPTER  III 
THE  OCCUPATION  OF  CALIFORNIA 

I.  THE  FIRST  CONQUEST  AND  REORGANIZATION 

THE  first  avowedly  official  operations  in  California  were 
conducted  by  naval  officers  in  pursuance  of  orders  issued 
June  24,  1845,  m  anticipation  of  a  rupture  with  Mexico. 
The  orders  were  directed1  to  Commodore  John  D.  Sloat, 
commanding  the  United  States  naval  forces  in  the  Pacific, 
who,  in  case  of  the  rupture,  which  he  was  to  do  everything 
consistent  with  national  honor  to  avoid,  was  to  seize  San 
Francisco  and  blockade  or  occupy  such  other  ports  as  his 
force  would  permit.  He  was  particularly  enjoined  to  pre 
serve  friendly  relations  with  the  people  of  California  and 
to  encourage  them  to  adopt  a  course  of  neutrality.1  In 
later  instructions  (May  15,  July  12,  and  August  13,  1846) 
the  object  of  preserving  friendly  relations  with  the  Cali- 
fornians  was  again  emphasized  by  Mr.  Bancroft,  the  Sec 
retary  of  the  Navy.  The  government  desired  to  be  in 
actual  possession  of  Upper  California  at  the  close  of  the 
war,  so  as  to  be  able  to  claim  it  on  the  basis  of  the  uti 
possidetis.  This  was  thought  to  necessitate  a  civil  admin 
istration,  which  Commodore  Sloat  was  directed  to  estab 
lish  under  his  protection.  In  doing  this  he  was  to  pay  due 
respect  to  the  wishes  of  the  people  of  California,  as  well  as 
to  the  actual  possessors  of  authority  in  that  province.  The 

1  H.  Ex.  Doc.,  29  C.  2  S.,  no.  19,  pp.  75,  79  **  seq. 
343]  '59 


!6o  MILITARY  GOVERNMENT 

oath  of  allegiance  to  the  United  States  might  be  exacted 
of  those  entrusted  with  authority.  In  short,  the  people 
were  to  be  "  allowed  as  much  liberty  of  self-government 
as  was  consistent  with  the  general  occupation  of  the  coun 
try  by  the  United  States." 

Only  the  orders  of  June  24  reached  Commodore  Sloat 
before  he  went  to  California,  but  it  is  only  fair  to  assume 
that  he  was  reasonably  familiar  with  the  course  which  the 
administration  desired  to  have  pursued  there.  Certainly 
he  knew  the  treatment  which  was  to  be  accorded  the  Cali- 
fornians  in  case  they  were  well  disposed  toward  the  United' 
States,  which  was  believed  to  be  the  case.  The  reader  will 
do  well  to  hold  this  in  mind  in  connection  with  later  de 
velopments. 

About  the  first  of  June,  1846,  Commodore  Sloat  received 
at  Mazatlan  reliable  information  that  hostilities  had  begun, 
and  immediately  sailed  for  California.  July  2  he  arrived 
in  the  harbor  at  Monterey  and  prepared  to  take  possession 
of  the  town.  Before  landing,  a  general  order  was  read  to 
the  marines,  informing  them  that  it  was  of  the  first  im 
portance  to  cultivate  the  good  opinion  of  the  inhabitants, 
whom  it  was  desired  to  conciliate.  No  act  of  hostility  was 
to  be  committed  without  express  orders  from  the  com 
manding  officer,  nor  was  any  one  to  leave  the  ranks  or 
enter  any  home  without  similar  authority.  The  landing 
was  effected  July  7,  with  two  hundred  and  fifty  men,  and 
possession  was  taken  of  the  town  without  opposition.  A 
proclamation  to  the  inhabitants  of  California  was  read  at 
the  custom-house,  and  the  United  States  flag  was  hoisted 
"  amid  three  hearty  cheers  by  the  troops  and  foreigners 
present."  1 

In  the  proclamation  the  commodore  assures  the  people 

j.  *  H.  Ex.  Doc.,  30  C.  2  S.,  no.  I,  p.  1006  et  seq. 


345]  THE  OCCUPATION  OF  CALIFORNIA 

that,  though  he  comes  "  in  arms  with  a  powerful  force," 
he  does  not  come  as  an  enemy,  but  as  their  best  friend, 
and  informs  them  that  "  henceforward  California  will  be 
a  portion  of  the  United  States,  and  its  peaceable  inhabitants 
will  enjoy  the  same  rights  and  privileges  as  the  citizens  of 
any  other  portion  of  that  territory,  with  all  the  rights  and 
privileges  they  now  enjoy,  together  with  the  privilege  of 
choosing  their  own  officers  for  the  administration  of  jus 
tice  among  themselves,  and  the  same  protection  will  be  ex 
tended  to  them  as  to  any  other  state  in  the  Union."  Re 
ligious  freedom  is  promised  and  an  era  o*f  prosperity  is 
predicted.  Such  of  the  inhabitants,  native  or  foreign,  as 
are  not  disposed  to  "  accept  the  high  privileges  of  citizen 
ship  "  will  be  allowed  to  dispose  of  their  property  and  de 
part  in  peace;  or  to  remain,  if  they  will  observe  a  strict 
neutrality.  "  With  full  confidence  in  the  honor  and  integ 
rity  of  the  inhabitants  of  the  country,"  "the  judges,  alcaldes, 
and  other  civil  officers  "  are  invited  "  to  retain  their  offices, 
and  to  execute  their  functions  as  heretofore,  that  the  public 
tranquillity  may  not  be  disturbed;  at  least,  until  the  gov 
ernment  of  the  territory  can  be  more  definitely  arranged." 
Provisions  would  be  paid  for  at  fair  rates.1 

A  more  pronouncedly  "  peace  policy  "  it  would  be  hard 
for  a  conqueror  to  pursue.  Under  Sloat's  direction  the 
same  course  was  followed  at  San  Francisco  and  in  the  north 
generally  by  Commander  Montgomery.  The  militia  were 
organized  and  supplied  with  arms  to  protect  their  persons 
and  property,  and  with  the  flag  of  the  United  States.  The 
revolutionists  at  Sonoma  were  quieted,  and  an  effort  was 
made,  but  without  success,  to  get  into  communication  with 
Captain  J.  C.  Fremont,  of  the  United  States  topographical 
engineers,  who  was  known  to  be  operating  in  the  north. 

1  H.  Ex.  Doc.,  30  C.  2  S.,  no.  i,  p.   1010. 


MILITARY  GOVERNMENT  [346 

On  the  same  day  that  Monterey  was  entered,  Commodore 
Sloat  summoned  Don  Jose  Castro,  commandant-general  of 
California,  to  surrender,  and  invited  him  to  a  conference 
at  Monterey.  Two  replies  were  received  from  Castro.  One 
called  attention  to  the  barbarous  practices  of  the  adven 
turers  under  Captain  J.  C.  Fremont,  and  expressed  the  belief 
that  they  could  not  belong  to  the  commodore's  command.1 
The  other  declared  that  the  governor  and  assembly  would 
have  to  be  consulted  in  regard  to  the  surrender,  but  as  for 
Castro  himself,  he  would  stand  by  the  Mexican  cause  as 
long  as  a  single  individual  would  join  him  in  it.2  Sloat 
then  invited  Governor  Pico  to  a  conference  at  Monterey, 
in  order  that  he  might  satisfy  the  governor  and  the  people 
that  the  Americans  had  come  as  their  friends;  and  he  also 
gave  an  assurance  that  everything  in  his  power  had  been 
done  to  stop  the  sacrifice  of  life  "  by  the  party  in  the  north." 

At  the  request  of  the  foreigners  at  San  Jose,  a  flag  was 
furnished  to  be  hoisted  there,  and  a  justice  of  the  peace 
was  appointed  to  preserve  order  in  the  town,  the  alcaldes 
declining  to  serve.  Captain  Fremont  was  found  in  pos 
session  of  St.  John's  and  was  left  there  to  dig  up  the  guns 
buried  by  Castro  and  to  garrison  the  place.  July  23,  Mont 
gomery  was  advised  to  appoint  two  justices  of  the  peace 
at  San  Francisco  to  administer  justice  in  minor  matters, 
with  directions  to  conform  to  the  existing  laws  of  the  terri 
tory.  Further  than  this  Commodore  Sloat  does  not  seem 
to  have  gone  either  in  the  work  of  conquest  or  organiza 
tion.  The  same  day  he  yielded  the  command  on  shore  to 
Commodore  Stockton,  and  a  few  days  later  left  California 
on  account  of  ill  health. 

The  departure  of  Commodore  Sloat  marks  the  beginning- 


1  H.  Ex.  Doc.,  30  C.  2  S.,  no.  I,  1012  et  seq. 

2  Sen.  Ex.  Doc.,  29  C.  2  S.,  no.  i,  p.  647. 


347]  THE  OCCUPATION  OF  CALIFORNIA 

of  a  more  "  vigorous  foreign  policy."  The  first  thing  the  new 
commander,  Stockton,  did  was  to  organize  the  "  California 
battalion  of  mounted  riflemen,"  under  Captain  Fremont  and 
Lieutenant  Gillespie,  and  send  them  off  to  San  Diego  to 
cut  off  Castro's  retreat  into  Mexico.  This  must  have  been 
done  with  Sloat's  approval,  certainly  with  his  acquiescence, 
since  he  had  not  left  the  harbor.  July  28,  an  "  Address  to 
the  People  of  California  "  was  ready,  in  which  the  influence 
of  Fremont  is  clearly  discernible.  It  begins  with  a  severe 
arraignment  of  the  Mexican  government  in  general,  and 
of  General  Castro  in  particular,  who  is  accused  of  having 
"  violated  every  principle  of  international  law  and  national 
hospitality,  by  hunting  and  pursuing,  with  several  hundred 
soldiers,  and  with  wicked  intent,  Captain  Fremont,  of  the 
United  States  army,  who  came  here  to  refresh  his  men 
(about  forty  in  number)  on  a  scientific  survey."  "  For 
these  repeated  hostilities  and  outrages,  military  possession 
was  ordered  to  be  taken  of  Monterey  and  San  Francisco 
until  redress  could  be  obtained  of  the  government  of  Mex 
ico."  There  was  no  intention  to  interfere  with  the  civil 
authorities,  the  commodore  continued,  but  they  had  aban 
doned  the  people  to  a  state  of  anarchy.  Abuse  was  then 
heaped  upon  General  Castro  as  a  usurper,  and  he  was  prac 
tically  denounced  as  an  outlaw.  In  closing,  the  commodore 
declared  that  he  did  not  desire  to  possess  himself  of  one 
foot  of  California  for  any  other  reason  than  to  protect  the 
lives  and  property  of  the  foreign  residents  and  citizens  of 
the  territory  who  had  invoked  his  protection,  and  that  he 
would  withdraw  as  soon  as  the  officers  of  the  civil  law  re 
turned  to  their  duties  under  a  regularly  organized  gov 
ernment.1 

This  pronunciamento,  in  which  the  commodore  held  out 

1  H.  Ex.  Doc.,  30  C.  2  S.,  no.  i,  p.  1035  et  seq. 


164  MILITARY  GOVERNMENT  [348 

the  sword  and  the  olive  branch  in  the  same  hand,  must 
have  been  confusing  enough  in  itself;  it  was  rendered  still 
more  so  when  read  in  connection  with  the  one  issued  by 
Sloat  a  few  days  before.  Sloat  himself  declared,  as  soon 
as  he  read  it,  that  it  did  not  express  his  reasons  for  taking 
possession  of  California,  nor  his  intentions  towards  that 
country.1  Nobody  knew  that  war  had  been  declared,  but 
Sloat  acted  on  the  presumption  that  the  hostilities  of  which 
he  had  heard  meant  war.  If  the  "  reports  of  rapine,  blood 
and  murder  "  were  the  causes  of  Stockton's  intervention, 
the  logical  course  for  him  to  pursue  would  have  been  to 
chase  the  murderers,  instead  of  driving  out  the  officers  of 
the  civil  government,  on  the  r  establishment  of  which  he 
promised  to  withdraw.  One  of  his  objects  was  to  prevent 
the  extermination  of  the  American  settlers  and  immigrants, 
which  had  been  threatened  in  a  proclamation.  The  com 
modore  also  tells  us  his  reason  for  refusing  to  enter  into 
negotiations  with  General  Castro,  who  demanded  as  a  pre 
liminary  that  he  should  advance  no  farther.  The  Mexican 
government  had  not  authorized  the  local  functionaries  to 
treat,  consequently  their  action  could  not  have  been  final. 
Nor  would  it  have  been  wise  to  stop  the  American  arms, 
and  thus  give  the  enemy  a  chance  to  recuperate  and  drive 
them  out  of  the  country — a  country  with  which  they  were 
not  at  war,  and  in  which  their  only  object  was  to  restore 
public  tranquillity!  Besides,  it  was  rumored  that  the  offi 
cials  would  dispose  of  the  public  domain  and  property  in 
anticipation  of  the  American  occupation,  and  "  to  prevent 
that  was  one  of  the  chief  objects  "  of  the  expedition  against 
them.2 

Some  time  about  the  middle  of  August  news  was  re^ 

1  H.  Ex.  Doc,  30  C.  2  S.,  no.  i,  p.  1034. 

2  Ibid.,  1037  ct  seq. 


349]  THE  OCCUPATION  OF  CALIFORNIA  ^5 

ceived  of  the  actual  declaration  of  war,  and  after  that  the 
commodore's  actions  and  proclamations  are  more  compre 
hensible.  By  August  28,  he  was  able  to  inform  the  Secre 
tary  of  the  Navy  that  the  flag  of  the  United  States  was 
flying  from  every  commanding  position  in  California.  How 
that  was  accomplished  was  summed  up  in  a  somewhat  ver 
bose  and  bombastic  paraphrase  of  Caesar's  famous  dispatch. 
He  also  assured  the  secretary  that  a  civil  government  had 
been  put  into  successful  operation.1 

This  "  proclamation  government "  was  set  up  at  Los 
Angeles  in  a  series  of  papers  issued  about  the  middle  of 
August.  One  of  these  reads: 

I,  Robert  F.  Stockton,  commander-in-chief  of  the  United 
States  forces  in  the  Pacific  Ocean,  and  governor  of  the  Terri 
tory  of  California,  and  commander-in-chief  of  the  army  of  the 
same,  do  hereby  make  known  to  all  men,  that,  having,  by  right 
of  conquest,  taken  possession  of  that  territory  known  by  the 
name  of  Upper  and  Lower  California,  do  now  declare  it  to  be  a 
Territory  of  the  United  States,  under  the  name  of  the  Territory 
of  California. 

The  proclaimer,  continuing,  "  ordered  and  decreed "  a 
regular  territorial  government,  with  a  governor  and  secre 
tary  to  hold  office  four  years,  and  a  legislative  council  to 
hold  for  two  years,  unless  sooner  removed  by  the  President 
of  the  United  States.  Municipal  officers  were  directed  to 
regulate  their  proceedings  by  the  Mexican  laws  until  other 
wise  provided  by  the  governor  and  council.  A  separate 
address  to  the  people  of  California  (August  17)  requested 
them  to  meet  and  elect  officers  to  fill  the  places  of  such  as 
declined  to  serve.  In  case  they  failed  to  do  so,  the  governor 
would  appoint.  All  persons  who  would  not  agree  to  sup- 

1  Sen.  Ex.  Doc.,  29  C.  2  S.,  no.  i,  p.  668. 


MILITARY  GOVERNMENT  [350 

port  the  existing  government  were  informed  that  they 
would  not  be  permitted  to  remain  in  the  territory.  Until 
the  civil  government  was  put  into  operation,  martial  law 
would  prevail,  and  during  that  time  all  persons  were  re 
quired  to  be  within  their  houses  from  ten  o'clock  at  night 
until  sunrise.1 

The  governor  now  turned  his  attention  to  revenue.  All 
foreign  vessels  arriving  in  the  ports  of  California  were  re 
quired  (August  15)  to  pay  tonnage  duties  at  the  rate  of 
fifty  cents  per  ton.  Goods  arriving  from  foreign  ports  were 
to  be  taxed  fifteen  per  cent,  ad  valorem,  payable  in  three 
instalments,  at  the  end  of  thirty,  eighty,  and  one  hundred 
and  twenty  days.  Two  disinterested  persons,  one  selected 
by  the  government  and  one  by  the  owner  of  the  goods,  were 
to  make  the  appraisement. 

Without  waiting  for  the  voluntary  elections,  the  gov 
ernor  ordered  a  general  election  to  be  held  September  15, 
to  elect  alcaldes  and  other  municipal  officers. 

Soon  after  this  a  general  order  was  promulgated  (Sep 
tembers)  looking  to  the  organization  of  the  army  of  Cali 
fornia.  The  territory  was  divided  into  three  departments, 
for  each  of  which  a  military  commandant  was  to  be  ap 
pointed.  Superior  to  these  would  be  a  military  command 
ant  of  the  territory,  subject  to*  orders  from  the  governor. 
Captain  Fremont  was  appointed  to  this  position,  and  Cap 
tain  Gillespie  was  made  commandant  of  the  southern  de 
partment. 

The  instructions  to  Captain  Gillespie  informed  him  that 
martial  law  would  prevail  throughout  the  territory  until 
otherwise  ordered  by  the  governor.  However,  he  was 
directed  not  to  interfere  with  civil  officers,  except  when 
the  public  peace  and  safety  demanded  it.  One  part  of  his 

1  Sen.  Ex.  Doc.,  29  C.  2  S.,  no.  i,  p.  669  et  seq. 


35 1 ]  THE  OCCUPATION  OF  CALIFORNIA 

task  was  to  see  that  the  proclamation  of  August  17  was 
strictly  observed,  but  he  was  authorized  to  grant  written 
permits  to  disregard  the  curfew  regulation.  In  case  the 
people  failed  to  elect  prefects  and  alcaldes,  he  was  directed 
to  appoint  them.1 

Having  completed  the  civil  organization,  Commodore 
Stockton  now  decided  to  leave  the  government  in  Captain 
Fremont's  hands  and  seek  other  fields  of  conquest.  Ac 
cordingly,  the  captain  was  informed  of  his  intentions  and 
ordered  to  meet  him  at  San  Francisco,  October  25,  that 
they  might  there  complete  the  arrangements. 

A  report  of  his  proceedings  was  now  (September  19) 
transmitted  to  the  Secretary  of  the  Navy,  with  the  state 
ment  that,  if  the  government  approved  of  them,  a  publica 
tion  of  such  approval  in  the  Calif ornian  would  have  a 
good  effect.2  No  reason  appears  to  have  been  given  at 
this  time  for  what  had  been  done.  About  eighteen  months 
afterwards,  in  defense  of  his  conduct,  which  was  then  called 
in  question,  the  commodore  said: 

It  appeared  to  me  that  the  existence  of  such  a  government, 
under  the  authority  of  the  United  States,  would  leave  no  pre 
tence  upon  which  it  might  be  urged,  that  the  conquest  of  the 
country  had  not  been  accomplished.  While  merely  the  military 
power  exercised  power,  enforcing  its  authority  by  martial  law, 
and  executing  its  functions  through  the  instrumentality  of  a 
regular  military  force,  nothing  could  be  regarded  as  settled, 
and  opposition  to  its  power  would  be  considered  as  a  lawful 
opposition  to  a  foreign  enemy.  When,  however,  the  whole 
frame  of  civil  administration  should  be  organized — courts  and 
judges  performing  their  accustomed  functions — public  taxes 
and  imposts  regularly  collected  and  appropriated  to  the  ordinary 

1  H.  Ex.  Doc.,  30  C.   i   S.,  no.  70,  pp.  43  et  seq. 
a  Ibid.,  2  S.,  no.  i,  p.  1044. 


168  MILITARY  GOVERNMENT  [352 

objects  and  purposes  of  government — any  opposition  might  be 
justly  deemed  a  civil  offence,  and  appropriate  punishment  in 
flicted  in  the  ordinary  course  of  administering  justice. 

He  further  thought  the  law  military  (meaning  martial 
law)  inadequate,  there  being  many  objects  over  which  it 
could  not  exercise  a  salutary  control.  But  a  civil  govern 
ment  which  should,  through  its  various  functionaries,  per 
vade  the  entire  country,  seemed  essential  to  the  attainment 
both  of  the  objects  which  he  had  in  view  and  of  the  ends 
of  the  government.  He  further  wished  to  subordinate  the 
military  to  the  civil,  its  proper  position,  to  accustom  the 
Californians  to  our  institutions,  and  to  give  to  Americans 
the  law  and  justice  they  had  enjoyed  at  home.1 

II.  CALIFORNIA  AT  THE  TIME  OF  THE  CONQUEST 

The  California  of  1846  may  be  regarded  as  substantially 
the  same  geographically  as  the  California  of  to-day,  though 
the  eastern  boundary  had  not  then  been  marked  as  it  now 
stands.  Very  little  of  it  except  the  west  coast  will  play 
any  part  in  the  events  to  be  narrated.  The  historian  Hittell 
estimated  the  population  at  5,000,  of  whom  4,000  were 
California^  descendants  of  Europeans  and  360  Americans 
from  the  United  States.2  Bancroft's  estimate  is  a  little 
higher,  but  appears  to  have  been  made  up  in  a  different 
way.  Accurate  statistics  were  not  to  be  had.  The  small 
population  was  scattered  along  the  coast  from  San  Fran 
cisco  in  the  north  to  San  Diego  in  the  south.  Monterey, 
the  capital  and  chief  commercial  city,  had  a  population  of 
750;  outlying  settlements  brought  the  population  of  the 
district  up  to  i,95O.3 

1  H.  Ex.  Doc.,  30  C.    2  S.,  no.  i,  p.  1043. 

2  Hist.  Cal,  ii,  469  et  seq.  3  Bancroft,  California,  iv,  650. 


353]  THE  OCCUPATION  OF  CALIFORNIA  ^9 

The  inherited  Spanish  love  of  pleasure  was  everywhere 
evident.  The  Rev.  Walter  Col  ton,  who  accompanied  Stock 
ton  to  California  as  a  chaplain  in  the  navy  and  served  as 
alcalde  at  Monterey,  says  that  so  many  devoted  their  Sun 
days  to  the  bottle  and  to  dancing  that  few  were  left  for 
the  church,  though  some  attended  mass  before  dressing  for 
the  ball.1  They  had  few  advantages  in  education,  but  made 
up  for  this  in  part  by  a  natural  quickness  of  wit.  In  hos 
pitality  they  were  as  free  and  open-handed  as  the  South  in 
the  olden  time.  Marriages  were  contracted  in  youth  and 
families  were  large,  several  of  more  than  twenty  members 
in  each  being  on  record.  The  life  was  largely  pastoral,  and 
the  rancheros  measured  their  possessions  by  leagues.  They 
were  reputed  to  be  passably  honest,  though  a  little  slow  in 
settling  with  foreign  traders. 

In  religion  the  Calif ornians  were  Catholics;  in  politics 
they  were  revolutionists.  This  habit  of  changing  their 
government  so  often  makes  it  a  little  hard  to  describe  the 
political  system.  Not  every  change  of  leaders  was  followed 
by  a  change  in  the  system,  but  such  changes  were  frequently 
made.  The  country  was  a  department  of  Mexico  and  was 
entitled  to  representation  in  the  Mexican  Congress.  It  had 
a  governor,  when  not  in  the  hands  of  a  military  usurper, 
and  usually  a  departmental  assembly,  but  the  governor  not 
infrequently  issued  regulations  and  orders  which  had  the 
force  of  law.  The  pay  and  glory  of  assemblymen  could  not 
have  been  very  great,  for  we  find  them  excusing  themselves 
from  attendance  on  various  pretexts;  not  long  before  the 
American  occupation  they  adjourned  and  went  home  to 
earn  a  living.  Sometimes  there  was  a  prefect  (executive 
officer)  for  the  districts,  and  sub-prefects  for  the  smaller 
divisions;  sometimes  these  offices  were  abolished  for  the 

1  Three  Years  in  California    (1850),  33,  46. 


I7o  MILITARY  GOVERNMENT  [354 

sake  of  economy.  The  towns  were  supposed  to  be  cared 
for  by  ayuntamientos.  The  law  provided  for  a  supreme 
court,  and  several  attempts  were  made  to  organize  one,  but 
with  ill  success.  Of  the  inferior  judicial  officers  the  alcalde 
seems  to  have  been  the  most  important.  The  total  revenue 
from  customs  in  1845  was  $140,000;  yet  at  the  end  of  that 
year  the  total  indebtedness  of  California  was  about  $158,- 
ooo,  none  of  which  dated  back  more  than  two  or  three 
years.  This  probably  accounts  for  hints  thrown  out  by 
some  that  the  government  officials  were  dominated  by  other 
than  patriotic  motives. 

In  addition  to  the  home-bred  revolutions,  which  were  not 
always  very  sanguinary,  there  was  another  disturbing  ele 
ment  in  Californian  life — the  foreigner.  The  treatment 
accorded  him  was  not  always  consistent;  sometimes  he  was 
encouraged  to  come,  sometimes  to  stay  away,  more  often 
the  former.  He  was  looked  upon  with  suspicion  and  fear, 
it  being  believed  that  he  had  designs  upon  the  country. 
In  the  spring  and  summer  of  1846  a  few  adventurers  at 
the  north  showed  that  this  fear  had  not  been  ill-grounded. 

The  story  of  the  "  Bear  Flag  Revolt,"  the  inner  history 
of  which  has  always  been  wrapped  in  more  or  less  mystery, 
has  no  proper  place  in  this  narrative.1  It  is  mentioned 
here  only  because  of  the  later  prominence  of  one  of  its  chief 
promoters,  and  because  of  the  influence  it  must  have  had 
on  later  events.  It  will  suffice  here  merely  to  say  that  cer 
tain  lewd  fellows  of  the  baser  sort,  encouraged,  if  not 
actually  instigated,  by  Captain  J.  C.  Fremont,  of  the  United 
States  topographical  engineers,  ostensibly  on  a  scientific  ex 
pedition,  raised  the  flag  of  revolt  in  the  north  and  com 
mitted  atrocities  more  common  in  the  earlier  stages  of  civi- 

1 A  very  good,  but  somewhat  tedious  account  of  this  disgraceful 
episode  will  be  found  in  Royce's  California. 


355]  THE  OCCUPATION  OF  CALIFORNIA  iji 

lization.  This  was  the  event  referred  to  in  the  correspond 
ence  between  General  Castro  and  Commodore  Sloat.  When 
Commodore  Stockton  assumed  command  the  revolutionists 
were  adopted  by  him,  and  when  the  work  of  conquest  was 
supposed  to  be  complete,  announcement  was  made  that  this 
same  Captain  Fremont  would  be  made  governor  of  the 
territory.  In  consequence  of  the  conflicting  proclamations 
and  incomprehensible  acts  already  mentioned,  it  is  not  sur 
prising  that,  in  some  cases,  the  inhabitants  fled  in  terror 
before  the  Americans,  not  knowing  what  to  believe,  or 
what  to  hope.1 

It  is  not  strange,  then,  that  the  Calif ornians  did  not  fall 
at  the  feet  of  the  Americans  and  thank  them  for  coming. 
Commodore  Sloat  thought  that  they  abandoned  all  hope 
of  ever  seeing  the  Mexican  flag  again  flying  in  California 
as  soon  as  the  British  Admiral  Seymour  came  in  and  de 
clined  to  interfere.2  Great  satisfaction  was  reported  to 
prevail  at  Sonoma  among  all  classes.8  Almost  any  con 
dition  would  have  been  preferable  to  the  reign  of  terror 
instituted  there  by  the  revolutionists.  At  Monterey  real 
estate  advanced  in  value  immediately  after  the  occupation, 
and  at  least  one  Californian  expressed  his  satisfaction  with 
the  consequent  increase  of  his  own  wealth  to  the  extent 
of  forty  thousand  dollars.  But  in  reporting  the  comple 
tion  of  the  conquest  in  September,  Commodore  Stockton  said 
that  many  still  hoped  that,  by  some  chance  or  accident,  the 
United  States  would  again  give  up  California  to  Mexico.4 

1  H.  Ex.  Doc.,  30  C.  2  S.,  no.  i,  pp.  1021,  1028. 
*  Ibid.,  1008.  *  Ibid.,  1023. 

4  H.  Ex.  Doc.,  30  C  i  S.,  no.  70,  p.  45. 


MILITARY  GOVERNMENT  [356 

III.  THE  REVOLT  AND  RECONQUEST 

The  course  of  events  soon  showed  that  Commodore 
Stockton  had  good  cause  to  doubt  the  security  of  his  posi 
tion.  His  dispatch  announcing  the  completion  of  the  con 
quest  was  but  little  more  than  a  week  old  when  news  was 
received  at  Monterey  that  the  southern  district  had  risen 
in  revolt  and  that  Captain  Gillespie  was  besieged  at  Los 
Angeles.  The  news  reached  Stockton  at  San  Francisco, 
and  he,  now  breathing  out  threatenings  and  slaughter  against 
the  rebels,  immediately  started  for  the  scene  of  conflict. 

The  mere  announcement  that  Captain  Fremont  was  to 
be  made  governor  ought  to  have  been  regarded  by  any  man 
acquainted  with  the  events  of  the  three  or  four  months 
preceding  the  announcement  as  a  sufficient  cause  of  un 
easiness  and  discontent,  if  not  revolt,  on  the  part  of  the 
inhabitants.  To  them  this  must  have  seemed  to  be  noth 
ing  more  nor  less  than  an  official  endorsement  of  the  bar 
barities  which  they  had  laid  at  the  captain's  door.  What 
then  could  they  promise  themselves  under  this  man  as 
governor?  And  yet  this  was  not  the  immediate  cause  of 
the  outbreak.  Indeed,  it  began  far  away  from  the  gov 
ernor's  camp,  though  near  that  of  one  of  his  lieutenants. 

Although  Captain  Gillespie  had  been  instructed  to  miti 
gate  to  some  extent  the  harshness  of  martial  law,  the 
accounts  generally  agree  that  he  began  with  a  series  of 
measures  which  caused  him  to<  be  regarded  as  a  tyrant. 
He  forbade  two  persons  to  go  about  the  streets  together, 
and  would  not  allow  the  people  to  have  reunions  at  their 
homes  under  any  pretext  whatever.  The  provision  shops 
were  closed  at  sundown,  houses  were  searched  for  arms, 
people  were  imprisoned  on  suspicion,  and  cases  were  de 
cided  by  the  captain  instead  of  by  the  justices  of  the  peace. 
The  "  bewildering  speeches  and  proclamations,"  and  "  the 


357]  THE  OCCUPATION  OF  CALIFORNIA 

banding  together  of  a  few  mongrel  bodies  of  volunteers, 
who  enhanced  the  pleasures  of  their  otherwise  agreeable 
society  by  pillaging  the  natives  of  horses,  cattle,  etc.,  in 
quite  a  marauding,  buccaneering,  independent  way,  all,  O'f 
course,  under  the  apparent  legal  sanction  of  the  United 
States,"  were  supposed  to  have  had  their  effect.1  That  par 
ticularly  galling  manifestation  of  contempt  which  Amer 
icans  frequently  display  toward  other  people  as  their  in 
feriors  also  played  a  part.  The  trouble  began  when  a 
turbulent  fellow,  Serbulo  Varela,  who  had  some  trouble 
with  Gillespie,  or  was  unwilling  to  submit  to  the  stringent 
police  regulations,  got  up  a  band  of  a  dozen  or  more  kin 
dred  spirits  and  ranged  about  the  vicinity  oi  the  town  to 
annoy  Gillespie's  troops.  Many  arrests  were  made  and  the 
people  found  themselves  branded  as  rebels.  Flo-res,  a 
paroled  Mexican  officer,  narrowly  escaped  arrest  and  then 
joined  the  insurgents,  The  rising  was  popular,  though 
probably  fomented  by  the  paroled  officers,  who  now  availed 
themselves  of  what  they  were  pleased  to  regard  as  a  breach 
of  faith  on  the  part  of  Gillespie  to  join  the  opposition. 

The  rising  at  the  north  does  not  appear  to  have  been 
directly  connected  with  the  movement  about  Los  Angeles, 
and  the  immediate  causes  for  it  were  a  little  different 
from  those  operating  in  the  south.  The  open  revolt  did 
not  begin  until  December,  when  Alcalde  Bartlett  left  San 
Francisco  (Yerba  Buena)  to  "purchase"  supplies  in  the 
usual  Fremont  fashion,  that  is,  by  "  taking "  them  from 
the  ranchero'S.2  One  Francisco  Sanchez,  and  a  few  others, 
who  did  not  like  this  method  of  trade,  captured  Bartlett 
and  his  companions  and  decided  to  hold  them  as  hostages. 
Colton  tells  us  that  those  engaged  in  this  undertaking  were 
men  of  the  better  stamp — men  who  had  a  permanent  in- 

1  Bancroft,  op.  cit.,  v,  306  et  seq.  2  Ibid.,  378  et  seq. 


MILITARY  GOVERNMENT 


[358 


terest  in  the  country.  "  They  stated  that  they  had  taken 
up  arms  not  to  make  war  on  the  American  flag,  but  to 
protect  themselves  from  the  depredations  of  those  who, 
under  color  of  that  flag,  were  plundering  them  of  their 
cattle,  horses,  and  grain  ;  and  that  on  assurance  being  given 
that  these  acts  of  lawless  violence  would  cease,  they  were 
ready  to  return  quietly  to  their  homes."  * 

The  whole  country  may  now  be  said  to  have  been  in  a 
blaze,  if  it  is  not  too  great  a  stretch  of  rhetoric  to  apply 
that  term  to  so  vast  a  region  with  so  few  people.  The 
Americans  were  threatened  from  San  Francisco  to  San 
Diego.  Flores  summoned  the  departmental  assembly,  which 
met  October  26,  and,  in  the  absence  of  Pico  and  Castro, 
elected  him  governor  and  commander-in-chief.2  But  the 
undertaking  was  almost  hopeless  from  the  beginning. 
Arms  and  ammunition  were  lacking;  the  camp  itself  was 
distracted  with  internal  dissension,  which  actually  led  to 
the  imprisonment  of  Flores  for  a  few  days;  and  the  evap 
oration  of  patriotic  zeal  followed  as  a  necessary  conse 
quence.  A  few  successes  were  secured,  the  most  notable 
of  which  were  the  expulsion  of  Gillespie  from  Los  An 
geles,  and  the  battle  at  San  Pascual  (December  6)  with 
General  Kearny,  who  had  just  entered  California,  after  a 
march  of  two  thousand  miles  from  Santa  Fe,  with  a  tatter 
demalion  company  of  about  one  hundred  dragoons,  and  with 
Captain  Gillespie,  who  had  joined  the  general  with  about 
thirty-five  volunteers.  But  the  battle  was  not  a  decisive 
victory,  resulting  only  in  a  check  to  the  Americans,  and 
on  January  8  and  9  the  contest  was  practically  decided 
against  the  Calif  ornians  in  the  engagement  at  San  Gabriel 
river.  Before  this  Flores  attempted  to  negotiate  with  Stock 
ton,  but  the  only  hope  held  out  to  him  was  that  of  being 

1  Three  Years  in  California,  152.     a  Bancroft,  op.  cit.,  v,  327  et  seq. 


359]  THE  OCCUPATION  OF  CALIFORNIA 

shot  as  a  rebel,  if  caught.1  After  the  battle  Flores  trans 
ferred  the  command  to  Andres  Pico,  in  the  hope  that  he 
could  secure  better  terms  of  peace,  and  set  out  with  Castro 
for  Mexico. 

Captain  Fremont  now  appears  to  have  attempted  to  undo 
some  of  the  mischief  of  his  previous  career  by  adopt 
ing  a  policy  of  conciliation.  By  some  means  Pico  had  found 
out  that  better  terms  could  be  secured  from  him  than  from 
Stockton  and  hastened  to  conclude  a  capitulation,  January 
13,  1847.  The  Californians  agreed  to  give  up  their  arms, 
to  take  no  further  part  in  the  war,  and  to  assist  in  placing 
the  country  in  a  state  of  peace  and  tranquillity.  Captain 
Fremont,  on  the  other  hand,  released  all  prisoners,  includ 
ing  those  on  parole,  promised  protection  to  life  and  prop 
erty,  the  right  to  leave  the  country  without  let  or  hind 
rance,  that  no  oath  of  allegiance  to  the  United  States  should 
be  exacted  until  the  conclusion  of  peace,  and  pardoned  all 
who  had  violated  their  parole.  The  last  in  particular  was 
displeasing  to  Stockton,  but  he  created  no  disturbance 
about  it.2 

1  Bancroft,  op.  cit.,  v,  403 ;  Sen.  Ex.  Doc.,  30  C.  2  S.,  no.  31,  p.  19. 

2  Ibid.,  20  et  seq. 


CHAPTER  IV 

r 

DIVISION  OF  THE  SPOILS 

I.  THE  QUARREL  OF  THE  VICTORS 

SCARCELY  was  the  work  of  conquest  ended  when  the 
victors  began  to  quarrel  over  the  spoils — if  the  governor 
ship  of  such  a  country  may  be  classed  as  spoils.  Commo 
dore  Stockton  does  not  appear  ever  to  have  had  any  in 
structions  from  Washington  regarding  the  establishment 
of  a  civil  government  in  California.  The  first  mention  of 
a  civil  government  by  the  Navy  Department  is  found  in 
the  instructions  o<f  July  12,  1846.  This  letter,  addressed 
to  Commodore  Sloat,  was  received  by  Commodore  Shu- 
brick,  and  communicated  to  Stockton.1  We  have  already 
seen  that  General  Kearny  had  specific  orders  upon  this 
point.2 

Respecting  the  military  operations,  Stockton  says  that 
he  repeatedly  offered  the  supreme  command  to  Kearny, 
"  although  it  was  my  decided  opinion  that  under  the  cir 
cumstances  that  existed  I  was  entitled  to  retain  the  position 
in  which  I  was  placed  as  commander-in-chief,"  but  that  the 
general  declined  it.3  How  the  "  existing  circumstances  " 
could  authorize  a  colonel — such  being  Stockton's  rank  on 
shore — to  command  a  brigadier-general  was  not  explained. 

1  Sen.  Ex.  Doc.,  30  C.   i   S.,  no.  33,  p.  197 ;  Life  of  Stockton,  Ap 
pendix,  30. 

2  Supra,  93. 

8  H.   Ex.   Doc.,  30  C.  2   S.,  no.   i,  p.   1050;   Sen.   Ex.   Doc.,  30  C. 
i   S.    (Fremont  Court-martial),  no.  33,  pp.  189  et  seq. 

176  [360 


361]  DIVISION  OF  THE  SPOILS  177 

Kearny 's  reasons  for  declining  were  given  in  a  statement 
to  the  commodore,  "  that  deference  and  respect  for  his 
situation,  he  being  then  in  command  of  the  Pacific  squad 
ron,  and  having  a  large  force  of  sailors  and  marines,  pre 
vented  me  at  that  time  from  relieving  him  and  taking 
charge  of  the  civil  government  of  the  country ;  that,  as  soon 
as  my  command  was  increased,  I  would  take  charge  of 
affairs  in  California,  agreeable  to  my  instructions."  * 

Stockton's  offer  to  put  Kearny  at  the  head  of  affairs 
in  California  would,  by  every  rightful  interpretation,  have 
included  the  management  of  civil  affairs,  but  it  is  very 
doubtful  if  such  was  the  intent  of  the  offer.     Even  if  it 
was,  Kearny  was  discreet  in  refusing,  since  he  could  not 
hope  to  pacify  and  maintain  order  in  the  country  with  less 
than  one  hundred  men.     The  sailors  and  marines  would 
only  have  been  volunteers  in  his  service,  subject  to  with 
drawal  at  any  time.     Even  his  right  to  command  the  Cali 
fornia  battalion    (under  Fremont)    was  later  disputed,  in 
spite  of  instructions  from  Washington  that  troops  organ 
ized  in  California  should  be  subject  to  his  order.     When 
Kearny  submitted  his  instructions  of  June  3   and    18  to 
Stockton,  the  latter  returned  them,  with  copies  of  his  own 
dispatches  relating  to  the  conquest  and  civil  organization, 
"  in  order  that  he,  as  a  friend,  might  participate  in  the 
pleasure  I  felt  of  having  in  anticipation  executed  the  orders 
of  the  government."  2     But  when  Kearny  suggested  that 
those  instructions  meant  that  he  should  have  the  manage 
ment    of    civil    affairs,    the    commodore    was    "  amazed." 
"  Should  .you  conquer  the  country,  etc.,  is  the  reading," 
said  he  in  substance ;  "  but  I  have  already  conquered  the 
country  and  put  the  civil  government  into  successful  opera- 


1  Sen.  Ex.  Doc.,  30  C  I  S.   (Fremont  Court-martial),  no.  33,  p.  82. 

2  Ibid.,  190. 


MILITARY  GOVERNMENT  [362 

tion  throughout  the  Territory,  except  at  two  places,  where 
it  is  now  only  temporarily  suspended  by  the  insurrection. 
The  wishes  of  the  government  have  already  been  complied 
with.  The  state  of  affairs  has  already  been  reported,  and 
I  cannot  permit  any  interference  until  an  answer  is  received 
to  that  report."  x 

Not  having  the  power  to  enforce  his  demands  and  wish 
ing  to  present  an  undivided  front  to  the  insurgents,  Kearny 
yielded  for  the  time  being  and  volunteered  to  serve  under 
the  command  of  Stockton.  He  was  then  put  in  the  imme 
diate  command  of  the  troops,  but  Stockton  went  along  as 
commander-in-chief.  After  the  victories  of  January  8  and 
9,  each  claimed  that  they  had  been  won  "  by  the  troops 
under  my  command."  Nobody  had  in  reality  been  exe 
cuting  any  civil  functions;  now  that  the  country  was  about 
to  be  pacified  Kearny  thought  that  the  time  had  come  to 
assert  his  rights  and  seized  upon  this  opportunity  to  assert 
them  as  commander-in-chief.  But  Stockton  denied  that  he 
had  ever  relinquished  the  supreme  command  and  declared 
that  Kearny  was  serving  under  him  as  a  volunteer.  The 
evidence  shows  that  in  this  Stockton  was  right.  On  sev 
eral  occasions  Kearny  recognized  him  both  as  governor 
and  as  supreme  commander,  and  even  addressed  him  as 
such  so  late  as  January  i3.3  But  he  claimed  that  this 
recognition  extended  only  to  the  fact  that  the  commodore 
was  "  acting  "  in  that  capacity.  Still  this  recognition  was 
in  fact  so  complete  that  Kearny  could  not  rightfully  claim 
any  credit  for  the  conquest  of  California,  except  as  a  volun 
teer  under  Stockton.  Whether  he  had  other  rights  was 

1  Sen.  Ex.  Doc.,  30  C.  I  S.,  (Fremont  Court-martial),  no.  33,  pp.  82, 190. 

2  Sen.  Ex.  Doc.,  30  C.  2  S.,  no.  31,  pp.  25  et  seq. 

3  Sen.  Ex.  Doc.,  30  C.   I   S.    (Fremont  Court-martial),  no.   33,  pp. 
322,  324,  108. 


363]  DIVISION  OF  THE  SPOILS  179 

another  question.  Stockton's  contention  may  be  summed 
up  in  a  few  words:  I  conquered  this  country;  whether 
the  conquest  was  completed  last  September  or  on  January  8 
and  9,  the  work  was  all  done  by  the  troops  under  my  com 
mand,  and  I  intend  to  govern  it  by  right  of  conquest. 
You  [Kearny]  must  get  out  or  remain  as  a  peaceable 
sojourner. 

Affairs  were  now  approaching  a  critical  stage.  January 
15,  1847,  Stockton  addressed  a  letter  to  Mr.  Bancroft, 
Secretary  of  the  Navy,  in  which  he  said :  "  The  Territory 
of  California  is  again  tranquil,  and  the  civil  government, 
formed  by  me,  is  again  in  operation  in  the  places  where  it 
was  interrupted  by  the  insurgents/' *  He  also  announced 
his  intention  to  withdraw  and  leave  affairs  in  the  hands 
of  Fremont.  Kearny  did  not  know  of  this  letter,  but  he 
was  pretty  well  acquainted  with  the  commodore's  inten 
tions.  On  the  following  day  he  sent  a  peremptory  order 
to  Stockton  to  cease  his  efforts  at  the  organization  of  a 
civil  government,  a  work  which  had  been  confided  to  him 
self  in  the  orders  of  June  3  and  18,  1846,  unless  authority 
from  the  President  could  be  shown  for  the  same,  in  which 
event  he  would  cheerfully  acquiesce.2  Stockton's  reply 
was :  "  I  cannot  alter  anything  on  your  demand,  which  I 
will  submit  to  the  President,  and  ask  for  your  recall.  In 
the  meantime  you  will  consider  yourself  suspended  from 
the  command  of  the  United  States  forces  in  this  place" 
[Los  Angeles].8 

The  precise  meaning  of  the  last  sentence  is  not  quite 
clear,  but  one  thing  is  certain,  Stockton  meant  to  suspend 
Kearny  from  the  command  of  the  sailors  and  marines, 
which  he  undoubtedly  had  a  right  to  do,  the  California 

1  Sen.  Ex.  Doc.,  30  C.  2,  S.,  no.  31,  p.  21. 

2  Ibid.,  i  S.,  no.  33,  p.  90.  *  Ibid.,  118. 


MILITARY  GOVERNMENT  [364 

battalion  under  Fremont,  and  possibly  the  dragoons  which 
Kearny  himself  had  brought!  Colonel  Fremont  had 
arrived  only  two  days  before  with  about  four  hundred 
volunteers,  and  now  Kearny  sent  a  test  order  to  him. 
A  copy  of  the  letter  of  June  18,  in  which  it  was  stated 
that  the  troops  organized  in  California  would  be  subject  to 
Kearny's  command  was  endorsed,  and  directions  were 
given  that  no  change  be  made  in  the  organization  of  the 
battalion  without  his  approval  being  first  obtained.1 

Fremont  had  long  had  his  eye  on  the  governorship  and 
now  trimmed  his  sails  to  catch  the  prize,  whichever  way 
the  wind  turned.  Stockton  had  promised  to  deliver  it  at 
once.  In  response  to  a  note  from  Kearny,  the  colonel 
now  called  upon  him.  In  the  course  of  the  conversation 
his  reply  to  the  order  just  mentioned  was  brought  in  for 
him  to  sign.  This  he  immediately  did  and  handed  it  to 
Kearny.  The  last  paragraph  read :  "  I  feel  myself  .... 
constrained  to  say  that,  until  you  and  Commodore  Stock 
ton  adjust  between  yourselves  the  question  of  rank,  where 
I  respectfully  think  the  difficulty  belongs,  I  shall  have  to 
report  and  receive  orders,  as  heretofore,  from  the  commo 
dore."  After  reading  this,  Kearny  offered  to  give  it  back 
and  let  him  destroy  this  evidence  of  an  insubordination 
which  would  prove  his  ruin.  The  question  of  the  governor 
ship  was  then  broached,  and  Fremont  afterwards  declared, 
with  apparently  good  grounds,  that  Kearny  tried  to  win 
him  and  his  battalion  over  with  the  promise  of  this  office. 
But  the  most  that  Kearny  said  was  that  he  expected  to 
leave  for  the  States  in  a  few  weeks  and  that  he  knew  of 
no  objections  to  appointing  Fremont  governor  at  that  time.2 
But  the  nearer  prize  appeared  the  more  alluring  to  Fre- 

1  Sen.  Ex.  Doc.,  30  C.  i  S.,  no.  33,  p.  5. 

2  Ibid.,  6,  39,  80,  94,  390  et  seq. 


365]  DIVISION  OF  THE  SPOILS  181 

mont,  who,  being  already  in  possession  of  a  commission 
from  Stockton,  persisted  in  his  insubordination,  though 
it  does  not  appear  how  he  imagined  that  a  naval  officer 
could  ever  shield  him  for  such  disobedience.  Kearny,  with 
less  than  one  hundred  men  obedient  to  his  command,  real 
ized  his  helplessness,  and  now  informed  Stockton  that,  in 
order  to  prevent  collisions  and  a  possible  civil  war,  he 
would  remain  silent  for  the  time  being.  The  same  day  he 
reported  the  state  of  affairs  to  Washington  and  then  with 
drew  with  his  dragoons  to  San  Diego. 

Stockton's  commission  to  J.  C.  Fremont,  Esq.,  as  "  gov 
ernor  and  commander-in-chief  of  the  Territory  of  Cali 
fornia,"  which,  "  by  authority  of  the  President  and  Con 
gress  of  the  United  States  of  North  America,  and  by  right 
of  conquest/'  had  been  taken  possession  of  and  declared  to 
be  a  territory  of  the  United  States,  was  dated  January  16, 
1 847.*  The  same  day  W.  H.  Russell  was  commissioned 
secretary  of  state.  Commissions  were  also  made  out  to 
seven  gentlemen  who  were  to  constitute  a  legislative  coun 
cil,  and  they  were,  by  proclamation,  ordered  to  meet  at 
Los  Angeles,  March  i.1 

II.  FREMONT'S  ADMINISTRATION 

Soon  after  the  departure  of  Commodore  Stockton,  the 
California  battalion  was  paraded  to  hear  the  announcement 
of  the  installation  of  the  new  government.  January  22, 
the  governor  issued  a  proclamation  announcing  the  restora 
tion  of  peace  under  the  treaty  made  between  himself  and 
Pico,  requiring  the  immediate  release  of  all  prisoners  and  the 
return  of  all  civil  officers  to  their  appropriate  duties,  and 
commanding  on  the  part  of  the  military  as  strict  obedience 

1  Sen.  Ex.  Doc.,  30  C.  I  S.,  no.  33,  pp.  258,  410. 

2  Ibid.,  2,  S.,  no.  31,  pp.  23  et  seq.;  Bancroft,  op.   cit.,  v,  433.          / 


MILITARY  GOVERNMENT 


[366 


to  the  civil  authority  as  was  consistent  with  the  security 
of  peace  and  the  maintenance  of  good  order  when  troops 
were  in  garrison.1 

But  in  spite  of  this  splendid  beginning,  the  administra 
tion  cannot  be  said  to  have  been  a  very  brilliant  one.  A 
somewhat  humorous  account  of  the  situation  was  given  by 
one  of  Kearny's  officers,  Colonel  Cooke,  under  date  of 
March  12.  "  General  Kearny  is  supreme  —  somewhere  up 
the  coast;  Colonel  Fremont  is  supreme  at  Pueblo  de  los 
Angelos  ;  Commodore  Stockton  is  '  commander-in-chief  ' 
at  San  Diego;  Commodore  Shubrick  the  same  at  Mon 
terey;  and  I  at  San  Luis  Rey;  and  we  are  all  supremely 
poor,  the  government  having  np  money  and  no  credit;  and 
we  hold  the  territory  because  Mexico  is  poorest  of  all."  a 

As  a  matter  of  fact,  however,  Fremont  was  for  a  few 
weeks  the  de  facto  governor,  though  there  is  little  record 
of  the  exercise  of  this  authority  outside  the  Los  Angeles 
district.  An  effort  was  made  to  get  the  council  commis 
sioned  by  Stockton  to  accept,  but  without  much  success. 
No  meeting  of  the  council  was  ever  held.3  Authority  was 
granted  to  raise  more  troops  to  constitute  a  second  com 
pany  of  artillery  in  the  California  service,  and  an  officer 
was  dispatched  to  look  after  the  defenses  of  San  Fran 
cisco  Bay.4  Two  collectors  of  the  customs  were  appointed, 
one  at  San  Diego  and  one  at  Santa  Barbara.  A  license 
was  granted  to  the  brig  Preniovera,  under  Mexican  colors, 
"  to  trade  on  any  portion  of  the  coast  of  California,  on 
terms  and  with  the  same  immunities  as  merchant  vessels 
of  the  United  States,"  5  which  privilege  was  revoked  by  Fre 
mont's  successor.  A  lengthy  letter  was  addressed  to  the 

1  Bryant,  What  I  Saw  in  California  (1849),  414. 

3  Bancroft,  v,  434.  3  Ibid.,  433. 

4  Sen.  Ex.  Doc.,  30  C   I    S.,  no.  33,  pp.  7,  8,   n. 
6  H.  Ex.  Doc.,  31   C.   i   S.,  no.   17,  pp.  295,  308. 


367]  DIVISION  OF  THE  SPOILS  183 

Hon.  W.  P.  Hall  to  inquire  whether  the  reports  were  true 
that  he  was  using  his  talents  and  high  character  as  a  member 
of  Congress  to  cast  doubts  upon  the  legitimacy  and  validity 
of  the  governor's  tenure  of  office.1 

A  few  other  acts  deserve  more  notice.  One  of  these  was 
the  execution  of  a  note  by  J.  C.  Fremont,  governor  of  Cali 
fornia,  binding  himself  and  his  successors  in  office,  as  the 
legal  representatives  of  the  United  States,  to  pay  to  Francis 
Temple  the  sum  of  $5,000,  as  soon  as  possible  after  the 
receipt  of  the  funds  from  the  United  States,  for  a  small 
island,  near  the  mouth  of  San  Francisco  Bay,  conveyed  by 
the  said  Temple  to  the  United  States.2  This  certainly  was 
a  remarkable  contract,  since  it  bound  the  agent  to  secure 
for  his  government  property  in  foreign  hostile  territory 
which  he,  by  his  own  confession,  was  holding  and  govern 
ing  only  by  right  of  conquest  under  the  laws  of  nations.3 

The  question  of  ways  and  means  engaged  the  governor's 
attention  early  and  late.  February  3,  he  addressed  Mr. 
Buchanan,  Secretary  of  State — thus  showing  a  misconcep 
tion  of  his  position  by  not  addressing  the  Secretary  of 
War — to  say  that  considerable  sums  of  money  would  ba 
needed  to  maintain  his  government.4  Four  days  later  his 
financial  embarrassments  were  laid  before  Commodore  Shu- 
brick,  who  had  just  arrived  in  California,  and  the  favor 
of  a  loan  was  asked,  but  the  commodore  did  not  see  fit  to 
grant  the  request.5  A  few  days  before  this  the  governor 
secured  from  Don  A.  J.  Cos  the  sum  of  $2,000,  by  binding1 
himself,  in  the  name  of  the  United  States  government,  to 
repay  the  loan  within  two  months,  with  interest  at  three 

1  Sen.  Ex.  Doc,  30  C.  i  S.,  no.  33,  pp.  7,  8,  11. 

2  Ibid.,  12.  3  Ibid.,  287. 
4  H.  Ex.  Doc.,  31  C.   i   S.,  no.   17,  p.  250. 

6  Sen.  Ex.  Doc.,  30  C.   i   S.,  no.  33,  p.   10. 


184  MILITARY  GOVERNMENT  [368 

per  cent,  a  month.  February  20,  another  $1,000  was 
secured  on  the  same  terms.1  March  3,  the  sum  of  $2,500 
was  borrowed  of  Don  Eulojio  de  Celis  "  for  the  benefit  of 
the  United  States  "  on  a  note  to  which  was  affixed  the  seal 
of  the  territory.2 

This  same  Celis  was  partner  in  a  cattle  deal  which  had 
a  more  or  less  shady  side  for  Colonel  Fremont.  On  the 
date  last  mentioned  a  contract  was  made  in  which  Celis 
agreed  to  deliver  six  hundred  head  of  cattle  to  the  com 
missary  of  the  troops  under  Fremont's  command,  for  which 
Fremont  bound  himself  and  his  successors  in  office  to  pay 
the  sum  of  $6,000,  and  to  deliver  to  Celis  the  hides  of  the 
cattle.3  April  26,  Fremont  gave  to  Celis  a  certificate  that 
he  had  complied  with  the  contract  by  delivering  the  speci 
fied  number  of  cattle,  and  also  a  due  bill  against  the  United 
States  for  the  sum  of  $6,975,  witn  interest  at  two  per  cent, 
a  month  at  the  expiration  of  eight  months  after  April 
i8.4  Yet  sufficient  proof  was  afterwards  found  that  Celis 
never  delivered  a  single  one  of  the  cattle  to  the  commis 
sary  and  that  not  one  of  the  six  hundred  was  slaught 
ered  for  the  use  of  the  battalion ;  but,  on  the  contrary,  that 
they  were  delivered  to  a  Mr.  Stearns,  of  Los  Angeles,  in 
two  instalments,  May  i  and  July  6,  subsequent  to  the  dis 
charge  of  the  battalion.  Mr.  Stearns  said  that  they  were 
delivered  to  him  on  a  special  agreement  to  breed  them  on 
shares  for  three  years,  and  that  he  regarded  them  as  the 
private  property  of  Colonel  Fremont.5  The  government 
does  not  appear  ever  to  have  assumed  responsibility  for  any 
of  the  Celis  claims.  That  of  Mr.  Cos  was  paid.' 

1  H.  Ex.  Doc.,  30  C.  i  S.,  no.  17,  P-  329. 

2  Ibid.,  365.  3  Ibid.,  370- 
*Ibid.,  365,  371.  6  Ibid.,  363  et  seq. 
6  Bancroft,  v,  466  et  seq. 


( 


369]  DIVISION  OF  THE  SPOILS  ^5 

Still  another  transaction  deserves  to  be  noticed.  March 
1 8,  Fremont  secured  $15,000  from  Francis  Hultman  for 
drafts  on  the  United  States  by  allowing  a  premium  of 
$4,500.  Following  suspiciously  close  upon  this  transaction 
came  a  special  order  (March  21)  to  the  collector  at  San 
Pedro  to  receive  "  government  payment  "  (that  is,  due  bills 
of  the  California  volunteers,  bought  up  at  a  considerable 
discount)  from  Mr.  Hultman  in  payment  of  customs  dues.1 
The  draft  not  being  honored,  suit  was  brought  against  Fre 
mont  in  London,  where  judgment  was  secured  for  the 
original  $19,500,  with  interest  and  costs,  amounting  to  $48,- 
814.  By  act  of  March  3,  1854,  the  government  assumed 
responsibility,  but  charged  the  $15,000  to  Fremont  until  he 
could  prove  that  it  had  been  used  for  public  purposes.  The 
proof  does  not  appear  to  have  been  furnished.* 

In  view  of  these  facts,  it  is  not  strange  that  the  eulogists 
of  Fremont  pass  over  this  part  of  his  career  in  silence.  The 
impression  is  left  that  he  was  seeking  something  else  than 
the  glory  of  serving  his  country.  Debts  had  to  be  created, 
both  by  Stockton  and  by  Fremont,  but  the  best  that  can  be 
said  for  the  latter  is  that  some  of  his  were  marked  by 
"  irregularities."  The  government,  as  it  was  in  honor 
bound  to  do,  assumed  responsibility  for  the  most  of  these 
debts  resting  on  good  proof,  and  passed  by  the  irregular 
ities  with  a  questionable  leniency. 

III.  FREMONT  OUSTED  BY  KEARNY 

Fremont's  whole  conduct  in  regard  to  the  governorship 
showed  such  an  entire  misapprehension  of  the  character  of 
that  office  and  of  his  own  position  as  to  tempt  one  to  believe 
that  it  arose  from  infatuation.  Stockton's  right  as  a  con 
queror  to  institute  a  "  civil  "  government  cannot  be  ques- 

1  Sen.   Ex.  Doc.,  30  C.   i   S.,  no.  33,  p.   16.          2  Bancroft,  v,  466. 


MILITARY  GOVERNMENT  [370 

tioned;  nor  was  there  any  objection  to  an  army  officer 
voluntarily  acting  as  governor  for  him,  so  long  as  there 
was  no  army  officer  superior  to  the  one  acting  as  governor 
to  command  otherwise.  That  a  supreme  commander  can 
not  tolerate  in  a  hostile  country  a  civil  establishment  inde 
pendent  of  his  control  does  not  appear  to  have  occurred  to 
either  Stockton  or  Fremont,  else  why  did  the  former  offer 
to  yield  the  supreme  command  to  Kearny  while  holding 
the  governorship  for  Fremont?  And  why  did  Fremont, 
signing  himself  as  lieutenant  colonel  in  the  United  States 
army,  refuse  obedience  to  a  brigadier  general  of  the  army 
who  was  on  the  spot?  What  but  infatuation  or  stupidity 
could  induce  an  army  officer  to  believe  that  the  command 
of  a  naval  officer,  an  inferior  in  rank  at  that,  could  relieve 
him  of  his  obligations  to  his  superiors?  Yet  the  "  legality 
and  validity  "  of  Fremont's  tenure  was  based  upon  just 
such  conditions. 

It  must  be  confessed  that  the  orders  issued  by  the  Navy 
and  War  Departments  were  somewhat  contradictory,  but 
they  have  not  been  cited  in  connection  with  the  controversy, 
except  so  far  as  they  were  received  and  actually  played  a 
part  in  it.  It  is  now  time  to  notice  others,  first  recalling 
those  already  mentioned. 

Kearny 's  instructions  of  June  3,  1846,  to  establish  a  civil 
government  in  California,  should  he  conquer  it,  were,  as  pre 
viously  stated,  held  by  Stockton  and  Fremont  to  have  been 
superseded  by  later  events,  the  work  directed  being  already 
done.  The  instructions  to  Sloat  of  July  12  also  directed 
him  to  establish  a  civil  government.  In  the  absence  of  a 
military  officer  higher  than  a  captain,  he  was  to  have  the 
selection  of  the  first  post  or  posts  on  the  waters  of  the 
Pacific.1  What  officer  other  than  Captain  Fremont  could 

1  H.  Ex.  Doc.,  29  C.  2  S.,  no.  19,  p.  81. 


37 1  ]  DIVISION  OF  THE  SPOILS 

have  been  expected  to  be  in  California  before  the  arrival  of 
Colonel  Stevenson  or  General  Kearny?  In  a  letter  of 
August  13  to  the  senior  naval  officer  in  the  Pacific,  Mr. 
Bancroft  took  care  to  cite  the  "  General  Regulations  for 
the  Army  "  (1825)  to  the  effect  that  no  officer  of  the  army 
or  navy  could  assume  any  direct  command,  independent  of 
consent,  over  any  officer  of  the  other  service.  He  also 
stated  that  the  President  expected  the  most  cordial  and 
effective  cooperation  between  the  officers  of  the  two  ser 
vices  and  would  hold  any  commander  to  a  strict  account 
ability  for  any  failure  to  preserve  such  harmony.1  Four 
days  later  a  letter  of  similar  tenor  was  addressed  to  Com 
modore  Shubrick.  He  was  expressly  instructed  "  to  advise 
with  any  land  officer  of  high  rank  (say  that  of  brigadier- 
general)"  who  might  be  at  hand  in  making  post  regula 
tions.2  September  u,  Secretary  Marcy  addressed  Colonel 
J.  D.  Stevenson,  about  to  sail  for  California  with  a  regi 
ment  of  New  York  volunteers :  "  Where  a  place  is  taken 
by  the  joint  action  of  the  naval  and  land  forces,  the  naval 
officer  in  command,  if  superior  in  rank  to  yourself,  will  be 
entitled  to  make  arrangements  for  the  civil  government  of 
it  while  held  by  the  cooperation  of  both  branches  of  the 
military  force."  All  his  powers  were,  as  a  matter  of  course, 
to  devolve  upon  General  Kearny  as  soon  as  he  arrived.8 

So  far,  it  will  be  observed,  no  orders  had  gone  out 
from  the  Navy  Department  revoking  the  orders  of  July  12, 
yet  the  later  dispatches  of  Secretary  Marcy  certainly  indi 
cate  that  the  land  officer,  if  outranking  the  naval  com 
mander,  was  to  have  charge  of  civil  affairs.  It  is  not  cus 
tomary  to  supersede  the  orders  of  one  department  by  later 
ones  from  another,  at  least  without  express  mention  of  the 

1  H.  Ex.  Doc.,  29  C  2  S.,  no.   19,  p.  83.  2  Ibid.,  93. 

.,  13. 


!88  MILITARY  GOVERNMENT  [372 

fact.  Soon  afterwards  news  of  the  actual  conquest  and  of 
Stockton's  proclamation  of  July  28  reached  Washington, 
and  then  explicit  instructions  were  sent  out.  Under  date 
of  November  3,  General  Scott  directed  General  Kearny  to 
cause  the  California  volunteers  to  be  regularly  mustered 
into  service,  if  this  had  not  already  been  done.  Directions 
were  given  regarding  the  civil  government,  which  simply 
assumed  that  he  would  have  charge  of  it.  Two  days 
later  Secretary  Mason  directed  Stockton  to  relinquish  civil 
affairs  to  Colonel  Mason,  or  to  General  Kearny,  if  the  latter 
arrived  before  he  had  done  so,  retaining  only  the  regula 
tion  of  port  duties  and  the  import  trade.1 

January  22,  1847,  Shubrick  arrived  at  Monterey  with 
the  instructions  of  July  12.  He  did  not  approve  what  had 
been  done  in  the  organization  of  the  civil  government,  but 
decided  not  to  interfere  until  the  wishes  of  the  President 
in  regard  to  the  appointment  of  Fremont  were  known.2 
When  General  Kearny  arrived  (February  8)  and  they  had 
read  each  other's  instructions,  each  "  was  prepared  to  pay 
all  proper  respect  to  them."  Shubrick  recognized  Kearny 
as  the  commanding  officer  in  California,*  and  Kearny  in 
turn  offered  his  assistance  to  Shubrick  in  the  management 
of  civil  affairs,  regarding  the  instructions  of  July  12  as 
superseding  his  own.4  They  then  agreed  upon  their  sep 
arate  duties,  and  Kearny  went  to  San  Francisco  to  look 
after  the  fortifications  there.  February  12,  Colonel  Mason 
arrived  at  San  Francisco  with  letters  and  instructions  up 
to  November  5.  From  that  day  the  doom  of  Fremont 
was  sealed. 

1  H.  Ex.  Doc.,  29  C.  2  S.,  no.  19,  pp.  15,  91. 

2  Sen.  Ex.  Doc.,  30  C.  I   S.,  no.  33,  p.  296. 

*  H.  Ex.  Doc.,  30  C.  2  S.,  no.  i,  p.  1071.  I 

*H.  Ex.  Doc.,  31  C.   i   S.,  no.  17,  p.  283. 


373]  DIVISION  OF  THE  SPOILS  189 

Kearny  now  had  explicit  instructions  to  assume  the  man 
agement  of  civil  affairs  and  the  requisite  force  with  which 
to  back  his  claims.  He  was  under  no  obligations  whatever 
to  make  known  these  instructions  to  Fremont,  but,  as  a 
matter  of  courtesy,  he  ought  to  have  done  so.  Shubrick, 
who  had  superseded  Stockton,  was  under  a  moral  obliga 
tion  at  least  to  make  known  his  instructions.  But  nothing 
of  the  kind  was  done,  and  Fremont  was  allowed  to  go  on 
piling  up  evidence  against  the  day  of  reckoning  upon  which 
Kearny  had  already  determined.  March  i,  1847,  Shubrick 
and  Kearny  issued  a  joint  circular  at  Monterey  reciting 
that  the  President  had  divided  their  duties  as  already  ex 
plained  in  connection  with  the  instruction,  and  expressing 
the  hope  that  a  cordial  cooperation  would  produce  only 
happy  results.  Three  days  later  Kearny  issued  a  procla 
mation  (dated  March  i)  to  the  people  of  California,1 
Neither  of  these  documents  made  any  reference  to  the  gov 
ernment  established  by  Stockton.  Any  one  reading  them 
would  have  supposed  that  a  government  was  now  for  the 
first  time  about  to  be  established  under  the  auspices  of  the 
United  States. 

Copies  of  these  papers  were  sent  to  Fremont,  but  with  no 
hint  of  the  new  instructions.  Two  important  orders,  dated 
March  i,  were  also  sent.  The  first  required  Fremont  to 
muster  in  the  California  battalion  under  the  volunteer  acts 
of  1846  in  order  that  they  might  be  properly  paid  for  past 
services.  Such  as  were  unwilling  to  serve  longer  he  was 
to  convey  to  San  Francisco  (Yerba  Buena),  via  Monterey, 
and  there  discharge  them.  Lieutenant  Gillespie  was  re 
lieved  and  Lieutenant  Colonel  Cooke  was  ordered  to  take 
charge  of  the  southern  military  district.  The  other  order  re 
quired  Fremont  to  deliver  to  Kearny,  with  as  little  delay 

1  H.  Ex.  Doc.,  31   C   i   S.,  no.  17,  p.  288. 


MILITARY  GOVERNMENT  [374 

as  possible,  all  the  archives  and  public  documents  apper 
taining  to  the  government  of  California.  The  last  para 
graph  added  that,  after  complying  with  these  instructions, 
the  colonel  would  be  free  to  leave  the  country,  in  accord 
ance  with  instructions  from  General  Scott.  This  order  was 
signed  by  Kearny  as  "Brigadier  General  and  Governor  of 
California."  March  16,  "  Governor"  Fremont  directed  his 
secretary  of  state  to  reply  that  the  volunteers  refused 
to  a  man  to  be  mustered  in  according  to  the  order. 
The  secretary  also  said :  "  The  governor  considers  it  un 
safe,  at  this  time,  when  rumor  is  rife  with  a  threatened 
insurrection,  to  discharge  the  battalion,  and  will  decline 
doing  so."  * 

On  the  previous  day  Fremont  had  taken  precautionary 
measures  in  an  order  to  Captain  Richard  Owens,  com 
manding  the  California  battalion  at  San  Gabriel.  After 
reciting  that  official  duties  called  him  to  the  north,  he 
ordered  the  captain  to  make  no  move  whatever  with  the 
battalion  from  San  Gabriel  during  his  absence,  except  to 
report  an  actual  invasion,  and  not  to  obey  any  order  not 
emanating  from  himself.2  A  week  later  he  started  on  his 
famous  ride  to  Monterey,  covering  the  entire  distance  there 
and  back  to  Los  Angeles,  about  eight  hundred  miles,  in 
eight  days.3  The  object  of  this  journey  is  not  definitely 
known.  Fremont  afterwards  said  that  it  was  to  give  Kearny 
information  of  an  impending  insurrection  and  to  find  out 
whether  he  would  assume  the  financial  obligations  incurred 
by  him  as  governor.4  Bancroft  thinks  that  this  motive  was 
manufactured  and  that  his  real  purpose  was  to  find  out  if 

1  Sen.  Ex.  Doc.,  30  C.  i  S.,  no.  33,  pp.  33,  15. 

2  Ibid.,  14- 

8  Bigelow's  Memoir  of  Fremont,  152  et  seq. 

4  Sen.  Ex.  Doc.,  30  C.  I   S.,  no.  33,  pp.   107,  427. 


375]  DIVISION  OF  THE  SPOILS  !9I 

Kearny's  recent  orders  were  founded  on  new  instructions 
from  Washington.1 

We  have  only  Kearny's  account  of  the  interview  between 
himself  and  Fremont.  First  the  latter  made  some  objec 
tion  to  the  presence  of  Colonel  Mason  in  terms  which  Kearny 
deemed  insulting.  Before  allowing  the  conversation  to  pro 
ceed  he  then  asked  whether  his  orders  of  March  i  would  be 
obeyed.  After  about  an  hour's  reflection  Fremont  replied 
in  the  affirmative.  At  this  Kearny  expressed  great  satis 
faction,  and  gave  certain  verbal  orders  regarding  the  volun 
teers,  supposing  that  Fremont  would  return  to  Monterey 
as  soon  as  possible.2 

The  interview  occurred  March  26.  Two  days  later 
Kearny  sent  Colonel  Mason  to  the  southern  district,  clothed 
with  plenary  powers,  both  civil  and  military,  and  bearing 
a  letter  to  Fremont.  This  letter  requested  Fremont  to  see 
that  all  unsettled  accounts  against  the  government  incurred 
by  his  order  were  at  once  properly  authenticated  and  com 
pleted  for  the  action  of  the  disbursing  officers,  as  it  might 
be  necessary  for  him  to  proceed  from  Monterey  to  Wash 
ington.3  What  he  did  about  the  accounts  has  already  been 
noticed  in  connection  with  his  administration. 

The  conduct  of  Mason  toward  Fremont  was  overbear 
ing  and  resulted  in  a  challenge.  The  weapon  selected  by 
the  former  was  a  double-barrelled  shot-gun,  but  Kearny 
forbade  the  duel.4  Two  days  before  the  sending  of  the 
challenge  Mason  requested  of  Fremont  a  list  of  his  civil 
appointments  and  such  of  the  official  records  as  were  in  his 
possession.  Fremont  replied  (April  13)  that  such  records 
of  his  official  acts  as  governor  as  had  been  preserved  had 

1  California,  v,  442. 

2  Sen.  Ex.  Doc.,  30  C.   I   S.,  no.  33,  pp.   104  et  seq. 

3  Ibid.,  34.  4  Bigelow's  Memoirs,  203  et  seq. 


I92  MILITARY  GOVERNMENT  [376 

already  been  sent  to  Washington  and  that  only  two  per 
manent  civil  appointments  had  been  made.1  And  here  we 
may  take  leave  of  the  colonel  as  governor  of  California. 

The  foregoing  narrative  shows  that  Fremont  was  not 
relieved  of  the  governorship;  he  was  treated  as  a  usurper 
and  ousted  accordingly.  Fremont  tells  us  that  he  knew 
nothing  of  the  instructions  of  November  5  at  the  interview 
with  Kearny,  March  26.  Supposing  that  he  was  to  be 
deposed  by  violence,  he  submitted,  so  he  says,  in  order  to 
prevent  a  struggle  and  the  injurious  results  to  the  public 
service  that  would  follow  such  a  contest.2  This  certainly 
is  strange  language  for  an  inferior  officer  to  use  respecting 
the  act  of  a  superior.  Yet  so  far  had  the  colonel's  infatua 
tion  gone  that  he  actually  thought  that  his  position  as 
governor  made  him,  a  lieutenant  colonel,  commander-in- 
chief ,  even  when  a  brigadier  general  was  in  the  country ! 8 
He  was  now  sent  east  under  duress,  was  tried  by  court- 
martial,  found  guilty  of  mutiny,  of  disobedience  to  orders, 
and  of  conduct  prejudicial  to  good  order  and  military  dis 
cipline,  and  sentenced  to  dismissal  from  the  service.  But 
in  consideration  of  the  circumstances  of  the  case,  the  sen 
tence  of  dismissal  was,  upon  the  recommendation  of  the 
court,  remitted  by  President  Polk.4  The  fact  that  he  was 
a  son-in-law  of  Senator  Benton  probably  accounts  in  part 
for  the  lenient  treatment  he  received.  Fremont  then  re 
signed. 

1  H.  Ex.  Doc.,  31   C.   i  S.,  no.  17,  p.  308. 

2  Sen.   Ex.  Doc.,  30  C.   I   S.,  no.  33,  pp.  422  et  seq. 
*  Ibid.,  427.  4  Ibid.,  340  et  seq. 


CHAPTER  V 

THE  FINAL  REORGANIZATION 

I.  SETTING  UP  THE  "  CIVIL  "  GOVERNMENT 

IN  spite  of  the  fact  that  Kearny  had  received  General 
Scott's  letter  of  November  3,  disapproving  of  the  annexa 
tion  of  New  Mexico,  he  does  not  appear  yet  to  have  had  a 
clear  conception  of  the  status  of  the  conquered  country. 
His  proclamation  of  March  i  was  more  conciliatory  in  tone 
toward  the  Calif ornians  than  the  ones  previously  issued  by 
Stockton,  but  it  went  practically  as  far  as  the  latter' s  of 
the  previous  August  in  annexing  the  country,  though  with 
out  using  the  word  annexation.  A  part  of  it  may  be  quoted : 

It  is  the  wish  and  design  of  the  United  States  to  provide  for 
California,  with  the  least  possible  delay,  a  free  government 
similar  to  those  in  her  other  Territories ;  and  the  people  will 
soon  be  called  upon  to  exercise  their  rights  as  freemen,  in 
electing  their  own  representatives  to  make  such  laws  as  may 
be  deemed  best  for  their  interest  and  welfare.  But  until  this 
can  be  done,  the  laws  now  in  existence,  not  in  conflict  with 
the  constitution  of  the  United  States,  will  be  continued  until 
changed  by  competent  authority;  and  those  persons  who  hold 
office  will  continue  in  the  same  for  the  present,  provided  they 
will  swear  to  support  that  constitution,  and  to  faithfully  per 
form  their  duty. 

The  undersigned  hereby  absolves  all  the  inhabitants  of  Cali 
fornia  from  any  further  allegiance  to  the  republic  of  Mexico, 
and  will  consider  them  as  citizens  of  the  United  States. 
Those  who  remain  quiet  and  peaceable  will  be  respected  in 
3771  193 


194 


MILITARY  GOVERNMENT 


their  rights,  and  protected  accordingly.  Should  any  take  up 
arms  against  or  oppose  the  government  of  this  territory,  or 
instigate  others  to  do  so,  they  will  be  considered  as  enemies, 
and  treated  accordingly. 

The  governor  then  congratulates  the  Calif  ornians  on  their 
release  from  Mexico,  the  source  of  their  domestic  troubles, 
and  predicts  that  they,  united  with  the  Americans  as  a  band 
of  brothers  under  the  folds  of  the  star-spangled  banner, 
will  soon  be  the  possessors  of  happy  and  prosperous  homes.1 

While  ignoring  the  acts  of  Stockton  and  Fremont, 
Kearny  really  acquiesced  in  their  work  by  allowing  the 
office-holders,  including  their  appointees,  to  continue  in  the 
discharge  of  their  duties.  "  The  laws  now  in  existence  " 
were  not  understood  to  include  those  providing  for  a  legis 
lative  council,  for  on  the  day  the  proclamation  was  pub 
lished  Kearny  replied  to  communications  from  San  Fran 
cisco  and  Sonoma,  where  councillors  had  been  chosen  by 
the  people,  that  he  had  not  called  any  such  council  and  did 
not  contemplate  doing  so.2  A  few  changes  in  the  offices 
of  alcalde  and  collector  were  rendered  necessary  by  the 
withdrawal  of  the  naval  officers  in  charge  of  them. 
Thereafter  the  government  simply  grew  as  it  was  forced, 
very  much  against  its  will,  to  expand  in  an  effort  to  meet 
the  needs  of  a  rapidly  increasing  and  very  heterogeneous 
population.  The  changes  will  be  noticed  in  their  proper 
place. 

General  Kearny  3  served  as  governor  until  May  31,  1847, 

1  H.  Ex.  Doc.,  31  C  i   S.,  no.   17,  pp.  288  et  seq.         2  Ibid.,  290. 

3  Stephen  Watts  Kearny  was  born  in  Newark,  New  Jersey,  August 
30,  1794.  He  was  a  student  at  Columbia  College,  but  at  the  outbreak 
of  the  War  of  1812  he  enlisted  as  a  lieutenant  and  served  with  dis 
tinction.  Thereafter  his  service  in  the  regular  army  appears  to  have 
been  continuous.  He  died  in  St.  Louis,  October  31,  1848. 

Richard   Barnes    Mason    (1797-1850)    was   a   descendant   of   George 


379]  THE  FINAL  REORGANIZATION 

when  he  left  for  the  United  States,  and  was  succeeded  by 
Colonel  R.  B.  Mason,  the  senior  military  officer  in  Cali 
fornia.  Mason  served  until  April  13,  1849,  when  he  in 
turn  was  succeeded  by  Brigadier  General  B.  Riley,  who 
served  until  the  state  government  went  into  operation.  A 
part  of  the  time  H.  W.  Halleck,  then  a  lieutenant  o-f  en 
gineers,  afterwards  famous  in  our  military  history,  and  the 
author  of  a  standard  work  on  international  law,  served  as 
"  secretary  of  state." 

II.  THE  REGULATION  OF  FOREIGN  TRADE 
In  the  course  of  the  war  with  Mexico  the  commercial 
policy  of  the  United  States  toward  her  enemy  underwent 
a  complete  change.  In  the  instructions  of  June  3,  1846, 
General  Kearny  was  directed  to  abolish  all  arbitrary  re 
strictions  in  the  customs  laws  of  such  territory  as  he  should 
conquer  and  impose  light  duties,  the  object  being  to  con 
ciliate  and  win  the  people  rather  than  to  raise  a  revenue. 
Whether  supplies  should  be  secured  by  requisition  or  by 
purchase  was  left  to  the  discretion  of  the  commanding 
officer.  Later  instructions  of  this  year  directed  that  ships 
and  cargoes  from  the  United  States  should  be  allowed  to 
come  and  go1  free  of  duty;  those  of  neutrals  were  to  pay 
no  higher  rates  than  those  collected  in  the  United  States. 
The  collections  were  to  be  made  by  civil  officers,  subject  to 
the  same  rules  as  other  civil  officials  in  the  country.1 

Mason,  the  first  of  the  Virginian  family  of  that  name  to  settle  in 
America.  He  entered  the  army  in  1817  as  a  second  lieutenant. 

Bennet  Riley  was  born  at  Alexandria,  Virginia,  in  1787.  He  entered 
the  army  as  ensign  of  rifles,  January  i,  1813,  from  which  time  his 
service  appears  to  have  been  continuous. — Appleton's  Cyclopedia  of 
American  Biography. 

1  Instructions  from  the  Secretary  of  the  Navy,  July  12,  August  13, 
17,  and  November  5,  1846.  H.  Ex.  Doc.,  29  C  2  S.,  no.  19,  pp.  82 
et  seq.,  91,  92. 


I96  MILITARY  GOVERNMENT  [380 

But  when  this  policy  failed  to  produce  the  desired  effect 
— to  win  the  people  of  Mexico  by  being  kinder  to  them 
than  their  own  government,  and  thus  bring  about  a  speedy 
termination  of  the  war — Presidait  Polk  determined  to  shift 
the  burden  of  the  war  upon  the  Mexicans  themselves,  so 
far  as  possible,  and  asked  the  Secretary  of  the  Treasury, 
Mr.  R.  J.  Walker,  to  examine  the  Mexican  tariff  laws  and 
report  such  a  schedule  of  duties  as  would  be  likely  to  pro 
duce  the  greatest  amount  of  revenue.  March  30,  1847, 
Secretary  Walker  replied  with  a  tariff  schedule  and  a  series 
of  regulations.  The  Mexican  ports  were  to  be  thrown 
open  to  the  commerce  of  the  world,  except  that  the  coast 
wise  trade  was  confined  to  American  vessels,  and  Mexican 
vessels  were  excluded  entirely.  American  goods,  except 
government  supplies,  were  to  pay  duty  the  same  as  those 
of  any  other  nation.  Goods  shipped  from  one  Mexican 
port  to  another  were  subject  to  duty  for  every  reshipment. 
Many  articles  of  American  manufacture  prohibited  by  the 
Mexican  tariff  were  now  subjected  to  a  revenue  duty.  A 
tonnage  duty  of  one  dollar  per  ton  was  levied  in  lieu  of 
port  duties  and  charges.  The  collection  was  entrusted  to 
the  military  and  naval  officers,  who  were  to  account  there 
for  to  the  Secretaries  of  War  and  of  the  Navy.  In  his 
letter  to  Secretary  Walker,  President  Polk  had  said  that  it 
was  the  right  of  a  conqueror  to  establish  temporary  mili 
tary  governments  and  to  exact  such  contributions.  He 
now  asked  the  Secretaries  of  War  and  of  the  Navy  to  carry 
the  recommendations  into  effect,  and  orders  were  issued 
accordingly  April  3.  May  10,  Secretary  Marcy  sent  a  copy 
of  the  regulations  to  General  Kearny  and  asked  him  to  see 
that  they  were  enforced  on  the  Pacific  coast.  This  letter 
contained  a  ruling  by  the  President  the  justice  of  which  is 
at  least  open  to  question.  It  was  to  the  effect  that  a  pre 
vious  payment  to  Mexico  would  not  exempt  a  vessel  or 


381]  THE  FINAL  REORGANIZATION 

cargo  from  the  operation  of  the  above  regulation.  How 
ever,  no  complaint  appears  to  have  arisen  in  California  on 
this  score.1  Other  modifications  were  made  later,  but  only 
one  needs  to  be  noticed  here.  This  was  an  order  of  Octo 
ber  13,  1847,  which  practically  opened  the  coast  trade  in 
California  to  foreign  vessels,  since  they  were  now  required 
to  pay  duties  at  any  one  port  only  on  so  much  of  their  cargo 
as  was  landed  there.  Instruction  was  also  given  to  Gen 
eral  Kearny  to  apply  the  money  so  collected  to  meet  the 
expenses  of  the  war  and  to  support  the  temporary  civil 
government.2 

But  the  making  out  of  orders  in  Washington  was  one 
thing  and  the  enforcement  of  them  in  California  was 
another.  Communication  between  the  two  places  was 
slow,  about  three  months  being  the  time  usually  re 
quired  for  the  transmission  of  a  letter  from  the  one  to 
the  other;  besides  many  contingencies  arose  in  California 
which  could  not  be  foreseen  in  Washington.  The  minute 
regulations  outlined  above  were  not  received  in  California 
until  October,  1847.  Meanwhile  the  officials  there  had 
already  made  several  trade  and  revenue  regulations,  in  pur 
suance  of  the  rights  of  belligerents  as  they  conceived  them 
and  of  the  broad  instructions  given  in  1846. 

The  duties  imposed  by  Commodore  Stockton  have  already 
been  noticed.  Even  these  moderate  charges  were  subse 
quently  modified  by  Shubrick  and  Biddle.  When  General 
Kearny  heard  of  Fremont's  permission  for  the  discharge  of 
custom-house  dues  in  "  government  payment "  he  promptly 
issued  orders  that  nothing  should  be  received  by  the  col 
lectors  except  specie,  treasury  notes,  or  drafts.3  June  i, 

1  Sen.  Ex.  Doc.,  30  C.  I  S.,  no.  i,  pp.  552  et  seq.;  Mayo,  Treasury 
Instructions,  i,  412  et  seq. 

2  H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  p.  250.        *  Ibid.,  300  et  seq.,  385. 


IQg  MILITARY  GOVERNMENT  [382 

Colonel  Mason  ordered  the  custom-house  receipts  to  be  set 
apart  as  a  civil  fund  subject  only  to  the  order  of  the  gov 
ernor  for  the  expenses  of  the  civil  department  in  California.1 
When  the  War  and  Navy  Department  orders  of  April  3 
were  received,  Colonel  Mason  at  once  (October  4)  dis 
missed  the  civil  collectors  and  directed  the  military  officers 
to  take  charge.  But  he  did  not  follow  the  schedule  sent 
from  Washington.  On  the  other  hand,  he  informed  the 
collectors  that  "  the  present  authorities  in  California  deemed 
it  most  to  the  interest  of  the  United  States  not  to  enforce 
that  schedule,"  and  directed  them  to  collect  the  duties  im 
posed  by  Commodore  Shubrick,  September  15,  i847.2  The 
tonnage  duty  was  raised  from  ten  to  fifteen  cents,  though 
the  orders  from  Washington  required  one  dollar.  Specific 
duties  had  been  adopted  in  all  cases  in  Mexico.  One  reason 
for  this  was  the  difficulty  of  securing  equitable  appraise 
ments.  The  ad  valorem  method  already  adopted  in  Cali 
fornia  was  not  altered,  at  least  in  some  cases.  Still  other 
modifications  of  the  orders  of  April  3  were  made  from  time 
to  time.  Several  foreign-built  vessels  owned  by  citizens  of 
the  United  States  or  of  California  were  licensed  to  engage 
in  the  regular  coasting  trade.  This  trade  was  duty  free  so 
far  as  confined  to  native  products.3  The  granting  of  one 
privilege  led  to  the  demand  for  another  until  Colonel  Mason 
finally  declared  that  he  could  make  no  more  modifications  of 
the  President's  regulations  in  favor  of  the  people  of  Cali 
fornia  until  he  heard  from  Washington.4  Later,  however,  a 
letter  from  Shubrick,  and  a  re-reading  of  the  tariff  regula 
tions  as  amended  by  Secretary  Walker,  May  10,  and  by  Sec- 

1  H.  Ex.  Doc.,  31   C.   i   S.,  no.   17,  p.  317  et  scq. 

2  Ibid.,  406.     The  writer  has  not  been   able  to   find   Shubrick's  in 
structions  of  September  15,  1847. 

8  Ibid.,  423  et  seq.  4  Ibid.,  51 1. 


383]  THE  FINAL  REORGANIZATION 

retary  Marcy,  October  13,  convinced  him  that  the  coasting 
trade  was  open  to  all  vessels,  and  such  was  declared  to  be  the 
case.1  Instructions  were  received  from  Washington  impos 
ing  an  export  duty  on  gold  and  silver,  and  were  duly  pro 
mulgated.  July  26,  1848,  Colonel  Mason,  in  the  absence  of 
the  naval  commander,  issued  twenty-one  custom-house  reg 
ulations,  concerned  mainly  with  defining  offences  and  pro 
viding  penalties.  The  regulations  against  smuggling  out 
gold  and  silver  in  particular  were  very  severe.  No  other 
orders  of  any  consequence  appear  to  have  been  issued  prior 
to  the  reception  of  the  announcement  of  the  treaty  of  peace. 

Colonel  Mason  very  ably  defended  his  course  in  making 
these  variations.  "  Promises  and  assurances,  based  upon 
these  instructions  [June  3,  1846]  have  gone  forth  to  the 
people  of  California  as  a  solemn  pledge  on  the  part  of  the 
government.  It  was  believed,  and  received  by  the  people 
generally  as  a  pledge;  but  some  of  our  enemies  among 
them  have  asserted  that  these  promises  were  made  by  us 
to  delude  them  into  subordination,  after  which  the  same 
high  duties  and  restrictions  on  commerce  would  be  restored. 
Now  these  persons  pass  for  prophets,  because,  after  nearly 
a  year  of  quiet  and  tranquility,  high  duties  are  again  ordered 
to  be  laid,  with  restrictions  upon  the  coast  trade,  that  will 
in  a  great  measure  prevent  the  expected  competition  and 
reduction  of  prices;  this,  too,  with  the  avowed  declaration 
on  the  part  of  our  government  to  treat  the  Calif ornians  as 
open  enemies,  subject  to  military  contribution."  Such  a 
course,  he  declared,  would  be  a  breach  of  good  faith,  and  he 
urgently  recommended  the  withdrawal  of  these  new  restric 
tions.2  As  he  was  neither  commended  nor  rebuked,  it  may 
be  assumed  that  his  conduct  was  tacitly  approved. 

The  policy  of  the  administration  in  the  Mexican  contri- 

i  H.   Ex.  Doc.,  31   C.  i   S.,  no.   17,  P-  544-  2  Ibid.,  424. 


200  MILITARY  GOVERNMENT  [384 

bution  fund  probably  will  stand  criticism  under  the  laws  of 
war  at  that  time,  but  would  hardly  do  so  to-day.  Accord 
ing  to  the  Hague  Convention,  if  the  taxes  imposed  for  the 
benefit  of  the  state  are  collected,  it  must  be  done,  so  far 
as  possible,  in  accordance  with  the  rules  in  existence  and 
the  assessment  in  force.  If  the  occupant  levies  other  taxes, 
they  can  only  be  for  military  necessities  or  the  administra 
tion  of  the  territory.  The  expenses  of  administration  must 
be  on  the  same  scale  as  that  by  which  the  legitimate  gov 
ernment  was  bound.1 

The  ratification  of  the  treaty  with  Mexico,  proclaimed 
May  30,  1848,  by  which  California  became  a  part  of  the 
United  States,  was  announced  to  the  Calif ornians  by  Colonel 
Mason  on  August  7.  Not  a  word  of  advice  had  come  with 
the  news  of  the  treaty,  and  the  colonel  was  left  to  act  on  his 
own  judgment  for  about  six  months  longer.  August  9  he 
ordered  the  revenue  laws  of  the  United  States  to  be  sub 
stituted  immediately  for  those  under  which  the  military  con 
tribution  had  been  levied.2  A  very  practical  question  soon 
presented  itself  in  the  treatment  now  to  be  accorded  to 
vessels  owned  by  Calif  ornians.  The  governor  decided  that 
he  could  not  register  any  vessel,  but  could  only  forward 
applications  for  registry  to  the  authorities  at  Washington. 
But  in  the  meantime,  to  prevent  hardships  by  a  stoppage 
of  trade,  he  would  grant  to  such  as  he  thought  entitled  to 
registry  sea-letters  or  license  which  would  enable  them  to 
carry  the  American  flag  and  trade  under  its  protection. 
The  competency  of  "  the  existing  government  of  Cali 
fornia  "  to  grant  such  letters  was  acknowledged  to  be 
open  to  question,  but  it  was  thought  that  they  would 
confer  rights  of  some  value.3  Civil  collectors  were  again 

1  liolls,  op.  cit.f  447,  449.  2  Doc.,  no.  17,  p.  592. 

3  Ibid.,  671  et  seq. 


385]  THE  FINAL  REORGANIZATION  2OI 

appointed,  but  the  military  officers  were  required  to  super 
vise  their  accounts  in  order  to  prevent  extravagant  expen 
ditures.1 

February  24,  1849,  tne  instructions  to  officers  of  the  cus 
toms  issued  (October  7,  1848)  by  Secretary  Walker  were 
received,  and,  at  the  request  of  the  Secretary  of  War,  were 
made  known  to  the  people  of  California.  These  instruc 
tions  said : 

By  the  treaty  with  Mexico,  California  is  annexed  to  this 
republic,  and  the  constitution  of  the  United  States  is  ex 
tended  over  that  territory  and  is  in  full  force  throughout 
its  limits. 

It  consequently  was  ordered  by  Secretary  Walker  that 
goods  sent  to  or  from  California  since  May  30  should  be 
treated  as  if  in  any  other  part  of  the  United  States.  Con 
gress  had  not,  he  said,  brought  the  territory  within  the  limits 
of  any  collection  district,  nor  authorized  the  appointment 
of  any  collectors,  and  for  this  reason  it  might  be  impos 
sible  to  collect  the  revenue  accruing  there.  Nevertheless, 
should  foreign  dutiable  goods  be  introduced  there  and 
shipped  thence  to  any  port  or  place  of  the  United  States, 
they  would  be  subject  to  duty,  as  also  to  all  the  penalties 
prescribed  by  law  when  such  importation  was  attempted 
without  the  payment  of  duties.2 

Such  an  announcement  can  hardly  have  been  expected  to 
produce  very  great  respect  for  our  revenue  laws.  One 
could  easily  infer  from  the  last  sentence  that  foreign  goods 
introduced  into  California  and  consumed  there,  instead  of 
being  "  shipped  thence  to  any  port  or  place  of  the  United 
States,"  would  not  be  subject  to  duty.  And  such  an  in- 

1  H.   Ex.   Doc.,  31   C.   i    S.,  no.    17,  p.  684. 

2  H.   Ex.  Doc.,  30  C.  2  S.,  no.   i,  p.  45. 


202  MILITARY  GOVERNMENT  [385 

terpretation  was  put  upon  it  by  some  to  their  sorrow,  as 
we  shall  see  later.  Secretary  Marcy  did  not  request  Colonel 
Mason  to  see  that  the  revenue  laws  were  not  violated,  but 
only  requested  him  to  "  make  known  to  the  people  of  Cali 
fornia  "  Secretary  Walker's  views,  in  which  he  stated  that 
the  President  concurred.1 

But  in  spite  of  this  halting,  don't-know-what-to-do  policy 
of  the  Administration,  Colonel  Mason,  constantly  in  consul 
tation  with  his  secretary  of  state,  H.  W.  Halleck,  a  man 
well  versed  in  public  law,  adopted  a  policy  and  held  con 
sistently  to  it.  In  announcing  Secretary  Walker's  views  it 
was  said  that  a  strict  interpretation  of  them  would  require 
dutiable  goods  to  be  entered  elsewhere  and  then  brought 
to  California  in  American  bottoms,  but  as  this  would  cause 
inconvenience  and  expense,  the  following  alternative  was 
offered :  "  To  pay  here  all  duties  and  fees,  and  to  execute 
all  papers  prescribed  by  the  revenue  laws  of  the  United 
States,"  without  which  the  governor  would  not  allow  goods 
to  be  landed.  An  attempt  to  do  otherwise  would  cause 
goods  and  vessel  to  be  seized  and  sent  to  the  United  States 
court  in  Oregon.2  Since  this  policy  was  also  supported  by 
the  naval  commander,  there  was  nothing  left  for  the  mer 
chants  to  do  but  submit,  which  some  of  them  did  only 
under  protest. 

March  3,  1849,  Congress  made  San  Francisco  a  port  of 
entry,  but  the  new  collector,  Mr.  J.  C.  Collier,  did  not  enter 
upon  his  duties 'until  November  13.  During  all  that  time 
the  collection  of  the  revenue  was  in  the  hands  of  the  mili 
tary  authorities. 

For  the  execution  of  the  trade  regulations  the  command 
ing  officers  thought  it  necessary  to  establish  a  court  of 
admiralty.  Accordingly  General  Kearny,  March  24,  1847, 

1  H.   Ex.  Doc.,  31   C.   i   S.,  no.   17,  p.  259.  2  Ibid.,  605- 


387]  THE  FINAL  REORGANIZATION  203 

"  in  virtue  of  authority  derived  from  the  President  of  the 
United  States,"  invested  the  alcalde  of  Monterey,  the  Rev. 
Walter  Colton,  with  admiralty  jurisdiction  in  and  for  the 
territory  of  California.1 

III.  THE  STATUS  OF  CALIFORNIA  BEFORE  AND  AFTER  THE 

TREATY 

We  have  already  seen  that  the  conquered  territory  did 
not  become  a  part  of  the  United  States,  but  that  it  was 
held  by  military  occupation  under  the  laws  of  nations.  But, 
in  spite  of  General  Scott's  letter  of  November  3,  1846, 
General  Kearny  appears  to  have  had  no  clear  conception 
of  the  nature  of  the  government  he  was  to  establish,  for 
we  find  him  speaking  of  the  Constitution  of  the  United 
States  as  though  it  were  in  force  in  California,  and  re 
quiring  an  oath  of  his  civil  officials  to  support  it. 
But  after  the  receipt  of  Secretary  Marcy's  letter  of  Jan 
uary  n,  1847,  Colonel  Mason  officially  recognized  the  fact 
that  his  government  was  military,  with  only  such  rights  as 
the  laws  of  nations  recognize,  and  from  that  time  we  hear 
no  more  about  the  Constitution  of  the  United  States  until 
after  the  treaty  of  peace.2 

In  consequence  of  one  of  General  Kearny 's  decrees  there 
arose  a  question  as  to  what  rights  a  belligerent  may 
exercise  while  holding  his  enemy's  territory.  The  decree 
referred  to  was  one  granting  certain  lots  to  the  town  of 
San  Francisco.3  In  writing  his  report  (March  i,  1849) 
on  the  laws  relating  to  public  land  in  California,  Secretary 
Halleck  used  words  which  implied  that  he  thought  Kearny 
merely  meant  to  direct  the  selection  of  such. lots  as  would 
be  needed  for  government  purposes,  surrendering  all  claim 

1  H.  Ex.  Doc.,  31   C.  i   S.,  no.  17,  P-  291.  2  Ibid.,  318. 

3  Infra,  248. 


204  MILITARY  GOVERNMENT  [388 

on  the  part  of  the  United  States  to  the  rest,  which  were 
to  be  sold  as  municipal  lands  already  belonging  to  the 
town.1  On  its  face,  however,  the  decree  was  an  original 
grant  and  it  was  treated  as  such  in  the  courts,  where  it  does 
not  appear  that  any  claim  was  made  that  the  town  already 
owned  the  lots.  Respecting  this  grant  the  Supreme  Court 
said: 

Mexican  rule  came  to  an  end  in  that  department  on  the 
7th  of  July,  1846,  when  the  government  of  the  same  passed 
into  the  control  of  our  military  authorities.  Municipal  au 
thority  also  was  exercised  for  a  time  by  subordinate  officers 
appointed  by  our  military  commander.  Such  commander  was 
called  military  governor,  and  for  a  time  he  claimed  to  exercise 
the  same  civil  power  as  that  previously  vested  in  the  Mexican 
governor  of  the  department.  By  virtue  of  that  supposed 
authority,2  General  S.  W.  Kearny,  March  loth,  1847,  as 
military  governor  of  the  territory,  [made  the  grant  already 
described.] 

******** 

But  the  power  to  grant  lands  or  confirm  titles  was  never 
vested  in  our  military  governors;  and  it  follows  as  a  neces 
sary  consequence  that  the  grant  as  originally  made  was  void 
and  of  no  effect.8 

The  Mexican  governor  of  California  appears  to  have  had 
authority  to  grant  lands,  but,  whatever  his  authority  in  this 
respect  may  have  been,  the  Court  evidently  say  that  the 
military  governor  did  not  succeed  to  it.  The  language  of 

1  H.  Ex.  Doc.,  31   C.   i   S.,  no.  17,  p.   124. 

2  General  Kearny's   words   were :"!,...  governor  of  California, 
by  virtue  of  the  authority  vested  in  me  by  the  President  of  the  United 
States,"  etc. 

3  Mumford  vs.  Wardwell,  6  Wall.,  435- 


389]  THE  FINAL  REORGANIZATION  205 

the  decision  leads  one  to  infer  that  the  Court  thought  he 
might  have  been  invested  with  such  power  before  the  treaty 
of  peace,  but  the  attempt  to  exercise  this  power  by  the 
United  States  would  have  violated  the  laws  of  war,  for  no 
belligerent  may  assume  to  dispose  of  the  immovable  prop 
erty  of  his  enemy. 

Soon  after  the  organization  of  the  state  government  the 
validity  of  grants  made  by  the  alcaldes  appointed  by  the 
military  occupant  was  called  in  question,  and  such  grants 
were  declared  void  by  the  supreme  court  of  California.1 
This  decision  was  based  on  the  same  principle  as  that  in 
Mumford  vs.  Wardwell.  As  many  such  grants  had  been 
made  it  created  consternation  and  alarm,  and  was,  in  the 
course  of  a  few  years,  overruled.2  The  new  decision,  how 
ever,  shifted  to  a  different  basis,  and  held  that  the  pueblos 
owned  the  lands  in  fee  and  could  dispose  of  them  in  time 
of  war  as  well  as  in  time  of  peace,  just  as  a  natural  person 
could  do.  Whether  the  alcaldes  were  legally  elected  or 
appointed  made  no  difference,  for  they  were  de  facto  offi 
cers,  were  obeyed  as  such,  and  their  acts  within  the  powers 
of  their  office  must  be  binding.2  A  case  finally  came  before 
the  Supreme  Court  of  the  United  States,  which  held  that 
the  pueblos  did  not  hold  their  lands  as  a  private  individual 
did  his  estate,  but  that  they  were  quasi  public  domains  sub 
ject  to  the  disposition  of  the  government  of  the  country, 
and  that  the  prefect  (or  alcalde)  had  no  right  to  alienate 
them  during  the  continuance  of  the  war,  whatever  may 
have  been  his  powers  before.3 

Another  decree  involving  the  rights  of  a  military  occu 
pant  was  that  establishing  the  court  of  admiralty.  The 

1  Woodworth  vs.   Fulton,   I    Cal.   Rep.,  305  e*  seq. 

2  Cohas  vs.  Raisin,  3  Cal.  Rep.,  452. 

8  Alexander  vs.   Roulet,  13  Wall.,  386  et  seq. 


206  MILITARY  GOVERNMENT  [390 

competency  of  such  a  court  to  decide  upon  prize  cases  was 
doubted  at  the  time,  but  the  alternative  lay  between  a  recog 
nition  of  its  jurisdiction  and  of  the  extreme  right  of  the 
belligerent  to  burn  and  sink  his  captures.  As  the  naval 
force  in  the  Pacific  could  not  spare  prize  crews  to  send 
captures  within  the  jurisdiction  of  our  regular  courts  they 
were  disposed  of  at  Monterey.  Seven  condemnations  in  all 
were  made  by  this  court,1  one  of  which  afterwards  came 
before  the  Supreme  Court  of  the  United  States.  This  was 
the  case  of  "  The  Admittance,"  an  American  vessel  which 
sailed  from  New  Orleans  for  Honolulu  after  the  declara 
tion  of  war  and  was  captured  while  trading  with  the  enemy 
at  San  Jose,  California.  Respecting  her  condemnation  and 
sale  by  Judge  Colton  as  lawful  prize  the  Supreme  Court 
said: 

All  captures  jure  belli  are  for  the  benefit  of  the  sovereign 
under  whose  authority  they  are  made ;  and  the  validity  of  the 
seizure  and  the  question  of  prize  or  no  prize  can  be  determined 
in  his  own  courts  only,  upon  which  he  has  conferred  juris 
diction  to  try  the  question.  And  under  the  Constitution  of 
the  United  States  the  judicial  power  of  the  general  govern 
ment  is  vested  in  one  Supreme  Court,  and  in  such  inferior 
courts  as  Congress  shall  from  time  to  time  ordain  and  es 
tablish.  Every  court  of  the  United  States,  therefore,  must 
derive  its  jurisdiction  and  judicial  authority  from  the  Con 
stitution  and  laws  of  the  United  States.  And  neither  the 
President  nor  any  military  officer  can  establish  a  court  in  a 
conquered  country,  and  authorize  it  to  decide  upon  the  rights 
of  the  United  States,  or  of  individuals  in  prize  cases,  nor  to  ad 
minister  the  laws  of  nations. 

The  courts,  established  or  sanctioned  in  Mexico  during  the 
war  by  the  commander  of  the  American  forces,  were  nothing 

1  Colton,   Three  Years  in  California,  407  et  seq. 


391  ]  THE  FINAL  REORGANIZATION  207 

more  than  the  agents  of  the  military  power  to  assist  it  in 
preserving  order  in  the  conquered  territory,  and  to  protect 
the  inhabitants  in  their  persons  and  property  while  it  was  occu 
pied  by  the  American  arms.  They  were  subject  to  the  mili 
tary  power,  and  their  decisions  under  its  control,  whenever  the 
commanding  officer  thought  fit  to  interfere.  They  were  not 
courts  of  the  United  States,  and  had  no  right  to  adjudicate 
upon  a  question  of  prize  or  no  prize.  And  the  sentence  of  con 
demnation  in  the  court  at  Monterey  is  a  nullity,  and  can  have 
no  effect  upon  the  rights  of  any  party.1 

The  law  of  England  is  different,  for  by  it  the  crown 
may  establish  prize  courts  in  conquered  territory.  At  least 
such  was  the  law  a  century  ago1  and  it  does  not  appear  to 
have  been  changed.  However,  it  appears  to  have  been  based 
upon  the  old  idea  that  the  limits  O'f  the  empire  were  ex 
tended,  ipso  facto,  by  conquest,  and  that  the  conquered 
territory  instantly  became  a  dominion  of  the  crown,  and  sub 
ject  to  the  old  prerogative  of  the  crown  to  establish  courts.2 
While  the  judicial  authority  of  the  United  States  is  vested 
in  one  Supreme  Court  and  such  inferior  courts  as  Congress 
may  from  time  to  time  ordain  and  establish,  it  is  hard  to 
see  why  the  establishment  of  prize  courts  in  foreign  terri 
tory  may  not  be  justified  under  the  war  power  of  the 
Executive,  or  the  law  of  necessity,  as  easily  as  a  great  many 
other  things  which  frequently  have  been  done.  Such  jus 
tification  appears  all  the  more  reasonable  when  it  is  remem 
bered  that  the  courts  of  the  United  States  have  no>  monopoly 
of  the  administration  of  the  laws  of  nations.  And  if,  as  is 
affirmed  elsewhere,  the  President  may  establish  courts  under 
the  laws  of  nations,  why  may  he  not  establish  courts  to 
administer  those  laws? 

1  Jecker  vs.  Montgomery,  13  How.,  515. 

2  Halleck,  ii,  402. 


208  MILITARY  GOVERNMENT 

One  hardly  knows  whether  to  be  the  more  surprised  or 
confused  on  finding  that  the  Supreme  Court  afterwards 
cited  this  case  as  illustrative  of  the  principles  applicable  to 
military  occupation,  and  in  the  next  breath,  without  a  word 
of  comment,  sustained  the  exercise  of  admiralty  jurisdiction 
by  the  provisional  court  established  in  Louisiana  by  Presi 
dent  Lincoln  in  virtue  of  his  authority  as  a  military  com 
mander.  The  decisions  of  this  court  had  already  been  legal 
ized  by  Congress,  but  the  Court  affirmed  that  it  was  "right 
fully  established  by  the  President  in  the  exercise  of  his 
constitutional  authority  during  war."  1  This  was  not  a 
case  of  prize,  but  the  difference  would  seem  to  be  in  favor 
of  the  court  at  Monterey.  If  the  President  cannot  estab 
lish  a  court  in  foreign  territory  to  administer  the  laws  of 
nations,  much  less,  it  would  seem,  can  he  establish  such  a 
court  on  domestic  territory,  even  when  hostilely  occupied, 
and  still  less  one  to  administer  the  laws  of  the  United  States. 

During  the  armistice,  pending  the  conclusion  of  peace,  the 
former  Mexican  governor  of  California,  Pio  Pico,  appears 
to  have  thought  that  he  was,  by  the  terms  of  the  armistice, 
which  allowed  the  Mexican  civil  officials  freely  to  exercise 
their  functions,  to  be  restored  to  his  position  as  governor. 
July  22,  1848,  he  addressed  a  letter  to  Governor  Mason, 
"  requesting  that  you  will  be  pleased  to  expedite  your  orders 
to  the  end  that,  in  the  places  in  California  occupied  by  the 
forces  of  the  United  States  of  America,  no  impediment  be 
placed  in  my  way  towards  the  establishment  of  constitu 
tional  order  in  a  political,  administrative,  and  judicial  man 
ner."  2  The  letter  closed  with  protestations  of  friendship 
and  good  will,  but  as  the  return  of  the  ex-governor  was 
creating  excitement  among  the  natives,  Governor  Mason 

1  The  Grapeshot,  9  Wall.,  133. 

2  H.  Ex.  Doc.,  31  C.  i   S.,  no.  17,  p.  602. 


393]  THE  FINAL  REORGANIZATION  209 

ordered  his  arrest.  He  appears  to  have  been  confined  a 
week  or  more  and  then  released.1 

After  the  conclusion  of  peace  it  may  very  reasonably  be 
assumed  that  Colonel  Mason  was  almost  nonplussed  at  his 
anomalous  position.  He  could  find  no  authority  for  a  mili 
tary  officer  to  exercise  civil  control  in  time  of  peace  in  a 
territory  of  the  United  States;  but,  believing  that  to  throw 
the  management  of  affairs  upon  the  alcaldes,  the  only  civil 
officials  in  the  country,  would  lead  to  endless  confusion,  he 
determined  to  maintain  his  position  and  keep  order,  if  pos 
sible,  with  the  rapidly  diminishing  force  at  his  command. 
He  also  felt  it  his  duty  to  attempt  the  collection  of  duties 
according  to  the  United  States  tariff  law  of  1846.  Re 
garding  this  he  said: 

I  am  fully  aware  that  in  taking  this  step,  I  have  no  further 
authority  than  that  the  existing  government  must  necessarily 

continue  until  some  other  is  organized  to  take  its  place 

But  the  calamities  which  would  surely  follow  the  the  absolute 
withdrawal  of  even  a  show  of  authority,  impose  on  me,  in  my 
opinion,  the  imperative  duty  to  pursue  the  course  I  have  in 
dicated,  until  the  arrival  of  despatches  from  Washington  .  .  . 
relative  to  the  organization  of  a  regular  civil  government. 

In  the  meantime,  however, my  force  is  inadequate  to 

compel  obedience.2 

The  views  of  the  administration  were  somewhat  tardily 
set  forth  by  Secretary  Buchanan  in  a  letter  (October  7) 
to  Mr.  W.  V.  Voorhies  on  the  eve  of  his  departure  for 
California  to  establish  postoffices  and  post  routes.  After 
congratulating  the  Calif ornians  upon  the  glorious  future 
before  them,  he  expresses  the  President's  regret  that  Con 
gress  did  not  establish  for  them  a  territorial  government 

1  Bancroft,  v,  588  et  seq.  2  Ibid.,  591  et  seq. 


2io  MILITARY  GOVERNMENT  [394 

and  hopes  that  this  will   soon  be  done.      Continuing  he 
said: 

In  the  meantime,  the  condition  of  the  people  of  California 
is  anomalous,  and  will  require,  on  their  part,  the  exercise  of 
great  prudence  and  discretion.  By  the  conclusion  of  the  treaty 
of  peace,  the  military  government  which  was  established  over 
them  under  the  laws  of  war,  as  recognized  by  the  practice  of 
all  civilized  nations,  has  ceased  to  derive  its  authority  from 
this  source  of  power.  But  is  there,  for  this  reason,  no  gov 
ernment  in  California?  Are  life,  liberty  and  property  under 
the  protection  of  no  existing  authorities?  This  would  be  a 
singular  phenomenon  in  the  face  of  the  world,  and  especially 
among  American  citizens,  distinguished  as  they  are  above  all 
other  people  for  their  law-abiding  character.  Fortunately,  they 
are  not  reduced  to  this  sad  condition.  The  termination  of 
the  war  left  an  existing  government,  a  government  de  facto,  in 
full  operation;  and  this  will  continue,  with  the  presumed  con 
sent  of  the  people  until  Congress  shall  provide  for  them  a 
territorial  government.  The  great  law  of  necessity  justifies 
this  conclusion.  The  consent  of  the  people  is  irresistibly  in 
ferred  from  the  fact  that  no  civilized  community  could  possi 
bly  desire  to  abrogate  an  existing  government,  when  the  alter 
native  presented  would  be  to  place  themselves  in  a  state  of 
anarchy,  beyond  the  protection  of  all  laws,  and  reduce  them 
to  the  unhappy  necessity  of  submitting  to  the  dominion  of 
the  strongest. 

This  government  de  facto  will,  of  course,  exercise  no  power 
inconsistent  with  the  provisions  of  the  Constitution  of  the 
United  States,  which  is  the  supreme  law  of  the  land. 

******** 

But,  above  all,  the  constitution  of  the  United  States,  the 
.safeguard  of  all  our  civil  rights,  was  extended  over  California 
on  the  30th  of  May,  1848,  the  day  on  which  our  late  treaty 
with  Mexico  was  finally  consummated.  From  that  day  its 
inhabitants  became  entitled  to  all  the  blessings  and  benefits 


395  ]  THE  FINAL  REORGANIZA  TION  2 1 1 

resulting  from  the  best  form  of  civil  government  ever  estab 
lished  amongst  men.1 

Yet  all  this  contained  no  very  definite  statement  as  to 
the  character  of  this  de  facto  government  and  the  extent 
of  its  powers.  Subsequent  instructions  sent  out  by  the  next 
administration  (Taylor's)  "  presumed  that  a  de  facto  gov 
ernment  remained  ....  on  the  consent  of  the  inhabitants 
....  to  protect  persons  and  property."  Only  the  laws  in 
force  in  California  at  the  time  of  the  conquest  were  thought 
to  be  still  operative.  Of  course  no  regulations  in  opposition 
to  the  Constitution  and  laws  of  the  United  States  could  be 
enforced  by  the  de  facto  government.  With  this  limitation 
the  government  was  to  be  aided  and  respected  in  the 
exercise  of  its  functions  by  the  commanding  officer.2 

When  General  Riley  heard  of  the  failure  of  Congress  to 
provide  any  government  for  California  he  issued  a  procla 
mation  (June  3,  1849),  m  which  he  said: 

In  the  absence  of  a  properly  appointed  civil  governor,  the 
commanding  officer  is,  by  the  laws  of  California,  ex  officio  civil 
governor  of  the  country ;  and  the  instructions  from  Washing 
ton  were  based  on  the  provisions  of  these  laws.  This  subject 
has  been  misrepresented  or  at  least  misconceived,  and  currency 
given  to  the  impression  that  the  government  of  the  country 
is  still  military.  Such  is  not  the  fact.  The  military  govern 
ment  ended  with  the  war,  and  what  remains  is  the  civil 
government,  recognized  in  the  existing  laws  of  California. 
Although  the  command  of  the  troops  in  this  department  and 
the  administration  of  civil  affairs  in  California  are,  by  the 
existing  laws  of  the  country  and  the  instructions  of  the 
President  of  the  United  States,  temporarily  lodged  in  the  hands 

1  Doc.,  no.  17,  pp.  6  et  seq. 

2  Secretary  Crawford  to  Brigadier-General  Riley,  April  3  and  June 
26,   1849.     Doc.,  no.   17,  pp.  273,  276. 


212  MILITARY  GOVERNMENT 

of  the  same  individual,  they  are  separate  and  distinct 

The  instruction  of  the  Secretary  of  War  made  it  the  duty 
of  all  military  officers  to  recognize  the  existing  civil  govern 
ment,  and  to  aid  its  officers  with  the  military  force  under 
their  control.  Beyond  this  any  interference  is  not  only  uncalled 
for,  but  strictly  forbidden.1 

The  foregoing  quotations  show  that  the  authorities  both 
in  Washington  and  California  believed  that  at  the  conclu 
sion  of  the  war  the  military  government  became  merged 
into  a  sort  of  de  facto  civil  government  subject  to  the  laws 
of  California  at  the  time  of  the  conquest  and  of  the  Con 
stitution  and  laws  of  the  United  States.  After  the  treaty 
the  most  important  civil  business  in  California — the  phrase 
ology  is  designedly  chosen  so  as  not  to  say  whose  business 
it  was — was  the  regulation  of  foreign  trade.  In  regard  to 
this  General  Persifor  F.  Smith,  for  a  while  senior  officer 
in  California,  but  never  acting  as  civil  governor,  instructed 
Colonel  Mason  (March  15,  1849)  that  no  duties  could  be 
exacted  of  any  vessel  or  on  any  goods,  but  that  if  merchants 
so  preferred,  they  might  deposit  the  amount  of  the  duties 
subject  to  the  disposition  of  Congress  and  then  land  their 
wares.2  No  one  appears  to  have  made  any  claim  that  the 
de  facto  government  in  California  had  any  legal  right  to 
collect  duties,  though  General  Riley  appears  to  have  come 
very  near  it  in  his  claim,  hardly  well  founded,  that  the 
"  civil  fund,"  which  grew  out  of  this  source  of  revenue,  had 
been  collected  and  disbursed  by  the  "  governor  of  Cali 
fornia  "  and  could  be  expended  only  on  his  orders.  He 
also  held  that  not  a  cent  of  this  fund  had  been  collected 
under  the  authority  of  any  department  of  the  army.3  What 
ever  their  rights  in  the  matter,  the  successive  heads  of  the 

1  Doc.,  no.  17,  p.  776  et  seq.         2  Ibid.,  713.         3  Infra,  233  et  seq. 


397]  THE  FINAL  REORGANIZATION  213 

civil  government  did  assume  that  it  was  their  duty  to  pre 
vent  the  violation  of  the  United  States  revenue  laws  by  the 
landing  of  goods  without  the  payment  of  duty.  This 
assumption  probably  grew  out  of  the  fact  that  the  collection 
of  the  military  contribution  was  by  the  President  entrusted 
to  the  so-called  "  civil  "  government.  A  circular  of  May  3, 
1849,  sent  out  to  the  various  collectors  by  Halleck  as  "  sec 
retary  of  state,"  referred  to  the  original  division  of  duties 
between  the  military  and  naval  officers  by  the  President's 
orders  as  though  those  orders  were  still  in  force.1  Yet  no 
claim  was  ever  made  to  the  right  to  collect  revenues, 
either  in  virtue  of  these  orders,  which  did  originally  impose 
this  as  a  duty,  or  of  any  law.  When  paid  voluntarily 
they  were  passed  to  the  credit  of  the  civil  fund,  subject  to 
orders  from  Washington. 

The  somewhat  confused  reasoning  of  the  Supreme  Court 
in  the  celebrated  case  of  Cross  vs.  Harrison  does  not  help 
us  much  in  the  search  for  a  legal  basis  for  the  collection 
of  this  revenue.  This  case  may  be  briefly  stated  as  follows : 

Cross  et  al.  wished  to  land  goods  at  San  Francisco  with 
out  the  payment  of  any  duties.  When  Mr.  Harrison,  one 
of  the  collectors  appointed  by  Governor  Mason  after  the 
treaty  of  peace,  refused  to  allow  this  they  paid  the  duties 
under  protest  and  brought  suit  to  recover  them.  They  con 
tended:  i.  That  from  February  3,  1848,  the  date  of  the 
treaty  with  Mexico,  until  March  3,  1849,  when,  by  act  of 
Congress,  California  was  erected  into  a  collection  district,  no 
duties  on  foreign  goods  could  accrue  to  the  United  States 
in  California.  2.  That  from  March  3  to  November  13, 
1849,  when  the  collector  entered  office  under  the  act 
of  Congress,  the  exaction  of  duties  by  Mr.  Harrison  was 
illegal,  he  not  being  a  legally  appointed  collector.2 

1  Doc.,  ibid.,  757.  2  Cross  v.  Harrison,  16  How.,  164  el  seq. 


214  MILITARY  GOVERNMENT 

The  Court  held  that  duties  under  the  war  tariff  were 
legally  exacted  until  August,  1848,  when  news  was  received 
of  the  ratification  of  the  treaty.  For,  said  the  court, 

Up  to  that  time  ....  duties  had  been  collected  under  the 
war  tariff,  strictly  in  conformity  with  instructions  which  had 
been  received  from  Washington. 

It  certainly  will  not  be  denied  that  those  instructions  were 
binding  upon  those  who  administered  the  civil  government  in 
California,  until  they  had  notice  from  their  own  government 
that  a  peace  had  been  finally  concluded. 

But  further  on  it  is  affirmed  that 

By  the  ratification  of  the  Treaty,  California  became  a  part  of 
the  United  States.  And  as  there  was  nothing  differently  stipu 
lated  in  the  treaty  with  respect  to  commerce,  it  became  in 
stantly  bound  and  privileged  by  the  laws  which  Congress  had 
passed  to  raise  a  revenue  from  duties  on  imports  and  tonnage. 

Subsequently  a  qualification  is  added  to  this,  with  no  ap 
parent  idea,  however,  that  it  was  needed  to  harmonize  the 
two  preceding  irreconcilable  rulings,  and  it  is  affirmed  that 

The  territory  became  subject  to  the  Acts  which  were  in  force 
to  regulate  foreign  commerce  with  the  United  States,  after 
those  had  ceased  which  had  been  instituted  for  its  regulation 
as  a  belligerent  right. 

The  next  question  related  to  the  time  at  which  the  war  tariff 
ceased  to  be  legally  binding.  This  the  Court  found  to  be 
August  9,  1848,  when  the  collector  at  San  Francisco  was 
informed  by  Secretary  Halleck  that  the  revenue  laws  of  the 
United  States  would  be  substituted  for  the  war  tariff. 

If  authority  to  make  this  change  be  sought,  the  Court 
think  it  is  to  be  found  in  the  civil  government  of  Cali- 


399]  THE  FINAL  REORGANIZATION  215 

fornia,  which  did  not  become  defunct  with  the  treaty  of 
peace.  This  government,  we  are  told,  was  instituted  by 
command  of  the  President,  and  was  continued  over  a  ceded 
conquest,  without  any  violation  of  the  Constitution  or  laws 
of  the  United  States,  until  Congress  should  legislate  for  it. 
Now,  since  California  was  still  held  and  governed  as  a  con 
quest,  the  right  inference  is  that  the  substitution  of  the 
United  States  revenue  laws  was  made  in  virtue  of  the  war 
power,  and  not  because  California  became  "  bound  and 
privileged  "  by  these  laws.  That  President  Polk,  through 
his  "  civil "  government  in  California,  might  have  con 
tinued  the  war  tariff  is  the  conclusion  to  which  this  part 
of  the  reasoning  leads,  especially  when  attention  is  called 
to  the  fact  that  he  gave  no  intimation  that  a  change  was 
to  be  made  until  several  months  after  sending  notification 
of  the  treaty.  In  any  event,  it  was  his  right  or  duty  to 
make  the  change. 

In  regard  to  the  civil  government,  the  Court  affirmed 
that  it  was  bound  by  the  municipal  laws  and  usages  in 
force  before  the  country  was  ceded  to  the  United  States. 
But  in  the  matter  of  commerce, 

Foreign  trade  had  been  changed  in  virtue  of  a  belligerent  right 
before  the  territory  was  ceded  as  a  conquest,  and  after  that 
had  been  done  by  the  Treaty  of  Peace,  the  inhabitants  were  not 
remitted  to  those  regulations  of  trade  under  which  it  was  carried 
on  whilst  they  were  under  Mexican  rule;  because  they  had 
passed  from  that  sovereignty  to  another,  whose  privilege  it  was- 
to  permit  the  existing  regulations  of  trade  to  continue,  and  by 
which  only  they  could  be  changed.  We  have  said  in  a  previous 
part  of  this  opinion  that  .  .  that  sovereignty  is  .  .  Congress. 

To  harmonize  this  statement  with  the  preceding  reasoning- 
of  the  Court  is  left  to  the  ingenuity  of  the  reader. 

Following  the  reasoning  of  the  Court,  we  aifirm  that  if 


2i6  MILITARY  GOVERNMENT  [400 

the  government  of  California  was  civil,  the  President  had 
no  more  right  to  call  upon  Governor  Mason  to  enforce  the 
United  States  revenue  laws  as  such  than  he  had  to  call  upon 
the  governor  of  New  York  or  Oregon.  Even  if  the  gov 
ernment  of  California  had  been  charged  with  the  collection 
of  the  revenue  under  Mexican  rule,  that  law  would  have 
become  a  nullity  by  the  treaty  of  cession,  for  that  duty  in 
the  United  States  belongs  only  to  those  upon  whom  it  has 
been  imposed  by  our  legislature.  That  the  President  could 
require  the  "  civil "  government  to  enforce  the  war  tariff 
during  the  continuance  of  the  war  nobody  will  deny.  But 
if,  as  the  Court  affirmed  in  one  place,  the  treaty  carried  our 
revenue  laws  to  California,  to  call  upon  it  to  enforce  any 
other  would  have  been  to  violate  his  oath  to  see  that  the 
laws  are  faithfully  executed.  On  the  other  hand,  to  call 
upon  Colonel  Mason,  not  Governor  Mason,  to  see  that  the 
revenue  laws  of  the  United  States  were  not  violated,  would 
only  have  been  to  observe  this  oath. 

Rejecting  the  confused  reasoning  of  the  Court,  but  accept 
ing  its  conclusion  that  Colonel  Mason  acted  rightly,  we 
may  confidently  conclude  that  the  "  civil "  government  of 
California  had  no  legal  right  to  collect  the  customs  rev 
enues  after  the  treaty,  either  for  itself  or  for  the  United 
States,  for  our  revenue  laws  were  binding  there  as  soon  as 
the  country  was  finally  ceded.  Only  a  few  weeks  before 
announcing  the  change  Colonel  Mason  had  occasion  to  call 
attention  to  the  fact  that  statutes  are  binding  from  the  date 
of  their  passage,  when  no  other  time  is  fixed,  though  their 
retroactive  effects  in  remote  districts  might  sometimes  be 
harsh.  Treaties  do  not  seem  to  be  any  exception  to  this 
rule,  though  Halleck  cites  the  action  of  the  court  in  ap 
proving  the  collection  of  duties  under  the  war  tariff  until 
August  9  as  evidence  that  our  revenue  laws  do  not,  ex  pro- 
prio  vigore,  extend  over  new  territory  from  the  date  of 


40i]  THE  FINAL  REORGANIZATION  217 

the  treaty  making-  the  cession.1  Since  then,  however,  the 
Supreme  Court  has  held  that  our  general  laws  do  take  effect 
in  new  territory  from  the  date  of  the  treaty.2  This  being 
true,  no  duties  could  be  legally  collected  by  anybody  in 
California  between  May  30,  1848,  and  March  3,  1849,  an(^ 
all  goods  landed  there  were  liable  to  confiscation.  But  in 
stead  of  following  the  strict  letter  of  the  law  the  authorities 
very  wisely  allowed  goods  to  be  landed,  upon  the  deposit 
of  the  amount  due  on  them,  an  act  which  could  only  be 
legalized  by  a  subsequent  law  of  Congress.  The  appro 
priation  of  the  funds  so  collected  to  the  "  civil "  govern 
ment  of  California  could  only  be  legalized  in  the  same  way. 

1  International  Law,  ii,  490  et  seq. 
2Dooley  vs.  U.  S.,  182  U.  S.,  232. 


CHAPTER  VI 
THE  MILITARY  RULE  IN  CALIFORNIA 

I.  ADMINISTRATION  OF  THE  CUSTOMS  AND  THE  CIVIL 

FUND 

AT  first  the  customs  department  was  administered  on  the 
theory  that  it  was  a  part  of  a  civil  government,  and  for 
that  reason  civilians  were  appointed  to  act  as  collectors. 
Those  appointed  by  Stockton  and  Fremont  were  confirmed 
in  office  by  General  Kearny  when  he  assumed  the  office  of 
governor.  Nearly  a  year  after  the  first  appointments  were 
made  Governor  Mason  directed  certain  officers  to  settle  and 
audit  the  accounts  of  these  collectors.1  Shortly  after  this 
orders  were  received  from  Washington  which  made  it  clear 
that  the  army  officers  should  serve  as  collectors,  a  change 
which  caused  some  grumbling.  The  only  consolation  Gov 
ernor  Mason  could  give  Captain  Folsom  was,  "  I  am  in 
for  it  here,  as  well  as  yourself  at  San  Francisco."  2  After 
the  treaty  of  peace  civilians  were  again  appointed,  no  doubt 
on  the  supposition  that  the  government  had  again  become 
civil. 

The  pay  of  these  officers  was  $1,000  to  $1,200  per  annum, 
in  one  case  conditioned  upon  the  receipts  amounting  to  that 
much.8  After  the  outbreak  of  the  gold  fever  it  was  hard 
to  secure  competent  men,  especially  at  such  salaries.  One 
man  refused  to  serve  at  San  Francisco  for  less  than  $3,000, 


H.  Ex.  Doc.,  31  C.  i   S.,  no.  17,  p.  385.  2  Md.,  404. 

Ibid.,  298,  305. 

218  [402 


. 

403]  MILITARY  RULE  IN  CALIFORNIA  219 

with  full  authority  to  "  appoint  ancj  pay  such  deputy  col 
lector,  clerks,  appraisers,  inspectors,  weighers,  and  gaugers 
as  may  be  necessary  to  conduct  the  business  of  the  custom 
house."  Mr.  Edward  Harrison,  whom  we  have  already 
met  in  the  Cross  vs.  Harrison  case,  was  more  modest  in 
his  demands  and  received  the  appointment,  September  3, 
I848.1  The  next  year  several  lieutenants  of  the  regular 
revenue  service  resigned  in  despair  O'f  being  able  to  live 
upon  their  salaries.2 

The  complaints  about  shortages  in  accounts  or  irregulari 
ties  in  making  out  accounts  were  very  numerous  and  indi 
cate  that  the  collectors  were  either  dishonest,  ignorant,  or 
careless,  probably  the  last  two.  Fremont's  appointees  gave 
trouble  in  this  respect,  but  their  irregularities  must  have 
been  due  to  inexperience,  for  Colonel  Mason  spoke  well  of 
them  in  his  report  to  Washington  when  they  were  thrown 
out  of  office  by  the  change  already  mentioned,  and  prom 
ised  to  reinstate  them,  should  another  change  make  it  pos 
sible.  One  was  reappointed  after  the  close  of  the  war  and 
appears  to  have  served  with  satisfaction.8  The  other  showed 
his  zeal  for  his  new  flag  by  collecting  $395.25  from  a 
Chilian  brig  which  had  put  in  at  Santa  Barbara  under 
stress  of  weather  and  reporting  the  same  to  Colonel  Mason, 
though  he  was  not  then  a  collector.  But  the  conduct  of 
Mr.  William  Richardson,  collector  at  San  Francisco  dur 
ing  the  first  year  of  the  American  occupation,  was  not  so 
satisfactory,  his  delinquencies  amounting  to  several  thousand 
dollars.  The  way  in  which  this  case  was  dealt  with  indicates 
that  there  must  have  been  still  some  confusion  in  Colonel 
Mason's  mind  as  to  his  own  position  and  rights.  Novem 
ber  8,  1847,  he  instructed  the  auditor  at  San  Francisco, 

1  H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  p.  660  et  seq. 

2  Ibid.,  58  et  seq.  s  Ibid.,  410,  654,  679. 


220  MILITARY  GOVERNMENT  [404 

Captain  Folsom,  to  secure  all  the  evidence  possible  against 
the  collector  as  a  preliminary  to  putting  his  bonds  in  suit 
when  the  "  proper  courts  "  were  established.1  Just  why  a 
military  occupant  should  await  the  establishment  of  "  proper 
courts,"  probably  meaning  civil  courts  under  the  authority 
of  the  United  States,  does  not  appear.  Several  peremp 
tory  demands  for  a  settlement  were  made  upon  Mr.  Rich 
ardson,  but  without  much  effect.  Finally,  nearly  two  years 
after  dismissal  from  office,  he  offered  to  pay  $5,000  of  the 
amount  still  due  in  Peruvian  money,  and  Governor  Riley 
authorized  Captain  Folsom  to  receive  that  sum.2 

And  yet  he  was  described  nearly  a  year  before  this  offer 
was  made,  while  efforts  were  in  progress  to  obtain  a  settle 
ment  from  him,  as  a  man  who  had  "  always  been  most 
friendly  disposed  towards  the  American  government."  This 
was  given  by  Colonel  Mason  as  a  reason  for  complying 
with  Captain  Folsom' s  request  to  admit  free  of  duty  a  box 
of  liquors  and  a  piece  of  silk  sent  by  the  admiral  of  the 
French  squadron  as  a  present  to  Mr.  Richardson  and  family.3 

But  civilians  were  not  the  only  collectors  who  gave  cause 
for  complaint.  The  army  officer  designated  to  relieve  the 
civilian  at  San  Diego  in  1847  was  described  by  Colonel  Stev 
enson,  commanding  at  Los  Angeles,  as  "perfectly  ignorant 
of  mercantile  matters  and  scarcely  able  to  write  his  name."4 
No  report  was  ever  received  from  him  until  the  com 
mand  was  changed,  some  eight  months  later,  and  then  only 
upon  a  special  order.  The  accounts  of  Lieutenant  Carnes, 
at  Santa  Barbara,  were  sent  back  to  him  as  incorrect.  After 
repeated  calls  for  their  return,  Colonel  Mason  finally  had 
to  threaten  him  with  arrest.5  Later  still  other  irregulari 
ties  were  found.  The  colonel's  greatest  trouble  seems  to 

1  H.  Ex.  Doc.,  31  C.  i   S.,  no.  17,  p.  417.       2  Ibid.,  567,  669,  781. 
»  Ibid.,  664.  4  Ibid.,  426-  5  Ibid.,  57Q. 


405]  MILITARY  RULE  IN  CALIFORNIA  221 

have  been  to  induce  his  subordinates  to  follow  the  ordinary 
principles  of  careful  and  exact  business,  particularly  the 
sending  of  receipts  for  disbursements.  He  seems  to  have 
been  watchful  even  in  the  smallest  details,  such  as  dis 
allowing  an  account  of  $5.00  for  blanks. 

Yet  some  of  the  irregularities  were  of  a  serious  nature. 
It  was  found  that  Captain  Folsom  had  retained  $9,789.72 
from  the  civil  fund,  for  which  he  had  rendered  no  account. 
This  the  treasurer  was  ordered  by  General  Riley  to  charge 
to  the  captain's  account  on  his  books.1  Numerous  com 
plaints  were  made  of  unauthorized  transfers  of  sums  from 
one  department  to  another.  But  Colonel  Mason  himself 
sometimes  found  it  necessary  to  borrow  from  the  "  civil 
fund."  In  fact,  he  left  California  with  something  over 
two  thousand  dollars  charged  to  his  account. 

Since  attempts  at  frauds  on  the  revenue  and  smuggling 
are  more  or  less  common  in  older  societies,  it  would  have 
been  unreasonable  to1  expect  anything  else  in  a  country 
where  society  was  so  unsettled  as  in  California.  In  Novem 
ber,  1847,  Colonel  Mason  reported  that  there  had  been  a 
great  deal  of  smuggling  and  that  it  probably  would  con 
tinue,  as  the  numerous  bays  and  coves  gave  every  facility 
for  the  landing  of  merchandise.  The  difficulty  of  prevent 
ing  this  was  enhanced  by  the  fact  that  there  were  no  mili 
tary  posts  near  several  places  where  it  had  been  customary 
to  land  goods.  One  or  two  good  revenue  cutters  would, 
he  thought,  render  effective  aid.  As  a  reward  to  informers, 
he  and  Commodore  Shubrick  had  offered  them  one-half  of  all 
smuggled  goods  seized  upon  their  information.2  When  an 
army  officer  presented  a  claim  under  this  rule  the  colonel 
first  disallowed  it  on  the  ground  that  he  had  been  detailed 
to  look  after  the  collection  of  the  customs.  Later,  how- 

1  H.  Ex.   Doc.,  31   C.   i   S.,  no.   17,  p.  857.  2  Ibid.,  399. 


222  MILITARY  GOVERNMENT  [406 

ever,  on  finding  that  revenue  officers  of  the  United  States 
were  entitled  to  a  share  of  the  condemned  goods,  he  re 
versed  his  ruling,  subject  to  the  approval  of  the  War  De 
partment.1  In  case  of  seizure,  confirmation  by  the  com 
manding  officer  before  sale  was  not  deemed  necessary.2 
Sometimes  goods  landed  without  a  permit  were  restored 
when  it  was  clear  that  there  was  no  intention  to  smuggle. 
But  in  general  Colonel  Mason  was  not  disposed  to  let  off 
offenders  caught  violating  regulations,  even  when  they 
offered  to  pay  after  landing  without  a  permit,  as  the  regu 
lations  had  been  published  and  such  leniency  would  estab 
lish  a  bad  precedent.8  Indirect  means  of  smuggling  were 
sometimes  resorted  to,  such  as  carrying  several  different 
sets  of  papers. 

The  allowing  of  soldiers  to  buy  for  their  own  use  goods 
which  had  not  paid  the  duty  opened  another  source  of 
fraud.  December  24,  1847,  Colonel  Mason  had  to  instruct 
Lieutenant  Carnes,  at  Santa  Barbara,  to  look  more  sharply 
after  the  enforcement  of  the  rules.  One  soldier,  he  thought, 
could  not  possibly  want  $400  worth  of  comestibles.  A 
few  months  later  he  ordered  the  lieutenant  to  collect  duties 
on  two  barrels  of  rum,  valued  at  $1,240.46,  which  a  pri 
vate  had  bought  "  for  his  individual  use  and  consump 
tion."  When  twenty  men  clubbed  together  and  bought 
$505  worth  of  merchandise,  one  item  of  which  was  two 
hundred  and  forty  caps,  "  for  their  own  individual  use," 
he  ordered  the  collector  at  San  Diego  to  exact  duties  on 
$201,  and  not  to  tolerate  such  clubs  in  the  future.4  In 
some  cases  the  collectors  excused  themselves  by  saying  that 
they  had  been  instructed  to  "  let  the  soldiers  have  what 
they  want." 

!H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  pp.  411,  453,  497. 

2  Ibid.,  449.  3  Ibid.,  458,  679.  *  Ibid.,  449,  489,  496. 


407]  MILITARY  RULE  IN  CALIFORNIA  223 

After  the  close  of  the  war  there  was  a  rapid  increase  in 
business,  especially  after  the  discovery  of  gold,  in  conse 
quence  of  which  the  prevention  of  frauds  became  more 
difficult.  August  14,  1848,  Captain  Folsom  gave  a  gloomy 
account  of  the  prospect  before  him  at  San  Francisco:  "Acts 
of  disgraceful  violence  occur  almost  daily  on  board  the 
shipping  and  we  have  no  power  to  preserve  order.  To 
morrow  morning  the  volunteers  will  be  mustered  out  of 
service,  and  we  shall  be  utterly  without  resource  for  the 
protection  of  public  property.  ...  If  it  is  possible  to  send 
a  vessel  of  war  here,  it  should  be  done  at  once.  .  .  .  This 
is  now  a  United  States  port,  and  we  are  bound  by  our 
treaties  to  protect  the  commerce  in  it.  ...  This  we  can 
not  do  at  present,  and  our  utterly  powerless  condition  and 
the  lawless  transactions  in  this  port  and  neighborhood  are 
a  constant  theme  of  reproach  to  our  flag."  * 

When  Mr.  James  Collier,  the  first  United  States  col 
lector,  arrived  in  San  Francisco  he  expressed  himself 
(November  13,  1849)  as  astonished  at  the  amount  of  busi 
ness  in  his  office.  The  city  was  reported  to  contain  thirty 
thousand  people  and  to  equal  Philadelphia  in  its  commerce. 
Owing  to  the  lack  of  warehouses,  nineteen  vessels  were 
employed  for  the  stowing  of  goods,  a  practice  which  opened 
a  wide  door  for  smuggling.  After  San  Francisco,  San 
Pedro,  a  town  of  three  buildings,  was  next  in  commercial 
importance,  being  the  chief  entrepot  for  smugglers.  An 
additional  cutter  would  be  needed  to  stop  this.  As  the 
town  was  twenty-five  miles  from  Los  Angeles,  Mr.  Collier 
recommended  that  it  be  made  a  port  of  entry  and  given  a 
deputy  collector.2 

Certain  vessels  built  in  California,  both  before  and  after 
the  American  occupation  and  before  the  treaty  of  peace, 

1  H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  p.  613.  2  Ibid.,  26. 


224  MILITARY  GOVERNMENT  [408 

were  licensed  by  the  military  authorities  to  engage  in  the 
coast  trade.  After  the  close  of  the  war  licenses  were  con 
tinued  to  these  vessels,  some  of  which  had  been  bought  by 
Americans.  This  was  done  because  the  American-built  ves 
sels  were  not  sufficient  to  meet  the  needs  of  the  country, 
and  Commodore  Jones  recommended  to  Mr.  Collier  the 
continuance  of  the  practice.  Some  claimed  that  the  ves 
sels  were  naturalized  by  the  treaty,  but  the  collector  held 
that  they  were  still  foreign,  since  California  was  foreign  ter 
ritory  until  the  ratification  of  the  treaty,  in  which  there  was 
no  mention  of  the  vessels,  and  that  they  could  be  naturalized 
only  by  Congress.  As  for  continuing  the  licenses,  he  had 
no  discretionary  power  and  could  only  enforce  the  law.  He 
regretted  that  some  of  his  countrymen  might  be  injured  by 
a  rise  in  freight  rates  and  the  price  of  provisions,  but  the 
American  ship-builders  and  ship-owners  would  receive  the 
protection  which  the  law  intended  to  give  them.1 

A  little  more  than  a  year  after  Colonel  Mason  made  his 
gloomy  report,  General  Riley  presented  (September  30, 
1849)  quite  a  different  picture:  "No  difficulty  has  been 
experienced  in  enforcing  the  tariff  of  1846,  and  the  revenue 
has  been  collected  at  a  very  moderate  expense,  considering 
the  peculiar  circumstances  of  the  times."  * 

Several  references  have  been  made  to  the  "  civil  fund." 
A  good  account  of  this  fund  was  given  by  General  Riley, 
then  acting  governor  of  California,  in  two  letters  dated 
August  30,  1849,  m  which  he  combatted  certain  preten 
sions  of  General  Persifor  F.  Smith,  then  the  ranking  officer 
on  the  Pacific  coast.  "  In  the  instructions  issued  from 
Washington,"  said  he,  "  to  General  Kearny  in  1846  .  .  . 
it  was  directed  that  the  duties  at  the  custom-houses  should 

1  H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  pp.  29  et  seq. 
*  Ibid.,  751. 


409]  MILITARY  RULE  IN  CALIFORNIA  22$ 

be  used  for  the  support  of  the  necessary  officers  of  the  civil 
government.  The  '  civil  fund '  was  commenced  in  the 
early  part  of  1847,  an<3  has  been  formed  and  used  in  the 
manner  directed.  The  collectors  have  been  appointed  by 
the  governor  and  have  been  subject  to  his  orders  alone. 
.  .  .  The  authorities  at  Washington  were  informed  of 
what  was  being  done  and  no  objection  was  ever  raised  by 
them  or  by  Congress.  .  .  .  On  assuming  command  in  this 
country  as  civil  governor,  I  was  directed  to  take  Governor 
Mason's  instructions  and  communications  for  my  guidance 
in  the  administration  of  civil  affairs.  I  determined  to  con 
tinue  the  collection  of  the  revenue  and  to  add  the  proceeds 
to  the  '  civil  fund/  ...  as  it  formed  my  only  means  of 
defraying  the  expenses  of  the  government.  The  expenses 
are  daily  increasing,  and,  as  I  have  no  power  to  impose 
taxes  in  this  country,  I  cannot  carry  on  the  government 
without  this  '  civil  fund.'  .  .  .  Not  a  cent  of  it  has  been 
collected  under  the  authority  of  any  department  of  the 
army;  nor  can  any  officer  of  the  army,  simply  in  virtue  of 
his  military  commission,  have  any  control,  direct  or  indirect, 
over  it.  ...  It  has  been  collected  and  disbursed  by  the 
'  governor  of  California,'  and  can  be  expended  only  on  his 
orders.  ...  I  am  both  surprised  and  mortified  to  learn  that, 
at  this  late  hour,  an  attempt  is  to  be  made  to  remove  this 
money  from  my  control,  and  to  place  it  at  the  disposition 
of  officers  who  have  had  no  responsibility  in  its  collection 
and  who  of  right  can  exercise  no  authority  over  it.  ... 
If  I  mistake  not,  the  opinion  that  the  governor  of  Cali 
fornia  has  no  control  over  the  '  civil  fund '  is  of  recent 
origin.  If,  however,  it  now  be  General  Smith's  wish  to 
assume  a  military  control  of  the  collection  of  duties  on  im 
ports  into  California,  I  will  immediately  discharge  the  col 
lectors  appointed  by  the  governors  of  California  and  sur 
render  the  entire  direction  of  the  matter  to  such  military 


226  MILITARY  GOVERNMENT  [4IO 

officers  as  he  may  direct.  But  for  the  money  already  col 
lected  by  the  civil  officers  under  my  authority  I  alone  am 
responsible;  and  until  further  instructions  from  Washing- 
ton,  I  shall  continue  to  hold  it  subject  to  my  orders  only, 
and  to  expend,  as  heretofore,  such  portions  of  it  as  may  be 
required  for  the  support  of  the  existing-  civil  government/'  * 

The  "civil  fund"  received  increments  from  a  few  sources 
other  than  the  customs  revenue,  such  as  the  sale  of  con 
demned  ordnance  stores  at  Los  Angeles,  presumably  the 
property  of  California  or  Mexico,  the  sale  of  certain  mis 
sion  property  at  San  Diego,  and  the  rents  arising  from  the 
leases  of  the  mission  estates.2  Those  who  had  charge  of 
it  were  directed  to  keep  it  separate  and  distinct  from  all 
other  funds.  Occasional  neglect  to  do  this,  or  transfers  of 
sums  from  one  fund  to  another  without  authority,  brought 
forth  the  governor's  rebuke. 

Owing  to  the  fact  that  the  army  and  navy  in  California 
were  not  always  well  supplied  with  funds,  loans  were  some 
times  made  to  them  from  the  civil  fund.  The  largest  aj>- 
pears  to  have  been  one  of  $70,000  to  the  navy  to  pay  the 
expenses  of  bringing  emigrants  from  Lower  California.  In 
addition  to  these  loans  individuals  borrowed  sums  ranging 
from  $100  by  S.  E.  Wood  worth  to  $2,500  by  Colonel 
Mason.8  May  10,  1849,  General  Canby,  assistant  adjutant- 
general,  ordered  the  immediate  refunding  of  all  sums  which 
had  been  transferred  to  the  pay,  quartermaster's,  and  sub 
sistence  departments.4 

The  civil  government  of  California  was  a  success  from 
the  beginning  so  far  as  concerned  the  amassing  of  a  sur 
plus.  The  collections  during  the  continuance  of  the  war 
amounted  to  $75,566.01.  The  expense  of  collecting  this 

1  H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  pp.  791  et  seq.,  815  et  seq. 

2  Ibid.,  628,  796,  818.  3  Ibid.,  813.  4  Ibid.,  907. 


4i  i  ]  MILITARY  RULE  IN  CALIFORNIA 

amounted  to  only  $3,342.52,  leaving  a  net  revenue  of  $72,- 
223.49.  This  included  $3,259.62  collected  at  La  Paz,  in 
Lower  California.1  After  the  conclusion  of  peace  the  re 
ceipts  rose  by  rapid  strides.  Before  the  close  of  the  mili 
tary  regime  the  so-called  civil  government  was  able  to  lend 
the  army  and  navy  sums  amounting  to  $978,736.67. 2  The 
total  collection  amounted  to  about  $1,500,000." 

Governors  Mason  and  Riley  both  appear  to  have  en 
deavored  to  be  economical  and  careful  in  their  expendi 
tures.  Up  to  the  proclamation  of  peace  the  disbursements 
for  the  "  civil  "  government,  as  reported,  amounted  to  only 
$7,088.51.  However,  the  total  must  have  exceeded  this 
sum,  as  the  accounts  cover  only  a  part  of  the  year  1847.* 
This  did  not  include  the  salaries  of  collectors,  which  were 
included  in  the  expense  of  collection.  Army  officers  serv 
ing  in  a  civil  capacity  received  no  extra  pay.  However,  a 
subsequent  act  of  Congress  (March  3,  1849)  provided  that 
they  might  receive  extra  compensation,  the  amount  to  be  de 
termined  by  the  President.  Officials  such  as  Indian  agents, 
secretaries,  clerks,  interpreters,  judges,  and  jurors  were 
the  chief  cause  of  expense.  Extravagance  on  the  part  of 
courts  in  particular  was  guarded  against,  exorbitant  fees 
being  disallowed.4  In  a  few  cases  Governor  Mason  was 
called  upon  to  pay  the  expenses  of  some  "irregular"  tribu 
nals,  but  he  declared  that  he  could  pay  no  expenses  incurred 
in  trials  not  strictly  legal.5  He  also  practiced  retrench 
ment  in  the  matter  of  pensions,  declaring  (June  4,  1847) 
that  the  funds  in  the  custom-house  at  Monterey  belonged  to 

1  H.  Ex.  Doc.,  30  C.  2  S.,  no.  47,  p.  13. 

2  H.  Ex.  Doc.,  31  C.  i  S.,  no.  72,  pp.  13,  75  **  seq. 
8  H.  Ex.  Doc.,  31  C.  i  S.,  no.  59,  p.  3- 

4  H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  p.  419. 
6  Ibid.,  489,  691. 


228  MILITARY  GOVERNMENT  [4I2 

the  United  States  and  could  not  be  paid  out  in  the  way  of 
pension  to  anybody  until  his  name  had  been  placed  on  the 
pension  list  by  act  of  Congress.1  In  the  latter  part  of  the 
military  regime  small  sums  were  expended  in  various  parts 
of  the  territory  to  construct  jails,  the  lack  of  which  had 
caused  no  little  inconvenience.2  The  largest  single  item  of 
expense  was  the  constitutional  convention  which  met  in 
1849.  The  members  of  this  were  liberally  paid  by  General 
Riley — sixteen  dollars  per  day  and  sixteen  dollars  for  every 
twenty  miles  of  travel  to  and  fro — after  which  the  rest  of 
the  "  civil  fund "  was  turned  into  the  treasury  of  the 
United  States.3 

II.  INTERNAL  ADMINISTRATION 

As  already  noticed,  it  was  announced,  both  at  the  time 
of  the  conquest  and  after  the  conclusion  of  peace,  that  the 
existing  laws  and  institutions,  so  far  as  not  inconsistent 
with  the  Constitution  and  laws  of  the  United  States,  would 
continue  in  force.  Such  a  limitation  was  hardly  within  the 
competency  of  the  conqueror  even  then — he  might  have 
said  the  constitution  and  laws  of  Great  Britain,  or  of  Ger 
many,  as  well — and  to-day,  as  we  have  already  seen,  it 
is  not  allowable.  July  27,  1847,  General  Scott's  General 
Orders  No.  20,  which  directed  that  all  cases  of  certain 
enumerated  crimes  to  which  a  soldier  was  a  party,  either  as 
plaintiff  or  as  defendant  against  another  soldier,  or  a  citizen 
of  the  country  occupied,  should  be  tried  by  court-martial 
or  by  military  commissions,  was  proclaimed  in  California. 
But  just  what  the  local  laws  were  was  hard  to  determine, 
for  not  a  copy  could  be  found  in  print.  To  obviate  this 

1  H.  Ex.  Doc.,  31   C.   i   S.,  no.   17,  p.  320.  2  Ibid.,  754,  790. 

8  Ibid.,  850 ;  Bancroft,  Hist.  Cal,  vi,  p.  302. 


413]  MILITARY  RULE  IN  CALIFORNIA 

difficulty  Governor  Mason  prepared  a  code  and  sent  it  to 
the  press,  but  failed  to  get  it  out  before  the  treaty  of  peace, 
owing  to  the  fact  that  the  printers  had  left  their  shops  to 
search  for  gold.1  May  n,  1849,  ne  announced  that,  in  the 
absence  of  both  law  and  precedent,  the  laws  and  usages 
of  the  states  and  territories  in  like  cases  should  be  consulted 
for  guidance.2  When  it  was  learned  that  Congress  had 
failed  to  legislate  for  California  the  code  was  again  taken 
up  and  was  published,  but  not  in  time  to  be  of  much  service, 
as  the  state  government  soon  went  into  operation.3  Orders 
and  decrees  were  issued  from  time  to  time  as  the  exigencies 
of  the  case  demanded,  and  these  had  all  the  force  of  law. 
Among  them  were  the  orders  forbidding  the  sale  of  liquor 
to  Indians  and  announcing  the  creation  of  offices  unknown 
to  the  Mexican  laws;  the  abolition  of  the  Mexican  law 
concerning  the  denouncement  of  mines,  the  practical  aboli 
tion  of  the  privileges  of  the  clergy  by  declaring  them  amen 
able  to  the  civil  courts,  and  the  introduction  of  trial  by 
jury;  and  the  defining  of  the  right  of  suffrage.4 

The  extraordinary  officers  must  have  been  appointed  to 
serve  temporarily,  for  at  the  announcement  of  the  treaty 
we  find  Colonel  Mason  writing  that  there  were  no  civil 
officers  in  California  save  the  alcaldes  appointed  or  con 
firmed  by  himself.  The  alcalde  was  supposed  to  preside 
over  the  town  council,  when  there  was  such  a  body, 
and  to  execute  its  ordinances.  In  the  absence  of  a 
judge  of  first  instance  he  might  assume  criminal  jurisdic 
tion.  This  imperfect  organization  satisfied  in  a  way  the 
simple  needs  of  the  pastoral  Calif ornians,  but  soon  the  con 
querors  outnumbered  the  conquered,  and  when  the  popula- 

i  H.  Ex.  Doc.,  31  C.  i   S.,  no.  17,  P-  677.  2  Mid.,  762. 

« Ibid.,  795,  807. 

*  Ibid.,  294,  435,  437,  452,  476,  779- 


230  MILITARY  GOVERNMENT 

tion,  under  the  influence  of  the  "  cursed  thirst  for  gold," 
leaped  from  about  10,000  or  12,000  in  1847  t°  something 
like  300,000  in  three  years,  it  may  well  be  imagined  that 
the  need  of  a  better  organization  was  keenly  felt. 

In  the  course  of  events  an  effort  was  made  to  meet  some 
of  these  needs  by  extending  the  jurisdiction  of  the  alcaldes. 
The  commission  of  murder  on  board  a  ship  in  the  autumn 
of  1847  ted  Colonel  Mason  to  declare  that  such  crimes 
could  not  go  unpunished  through  lack  of  a  higher  judicial 
officer  than  the  alcalde,  and  ordered  that  officer  to  take 
charge  of  the  case.  In  all  such  cases  trial  was  to  be 
by  jury,  and  the  whole  proceedings  were  to  be  submitted 
to  the  governor  for  his  approval.  At  San  Jose  three  men, 
charged  with  highway  robbery  and  assault  with  intent  to 
kill,  were  tried  by  a  jury  in  an  alcalde's  court,  found  guilty, 
and  executed  without  reference  to  the  governor.  When  the 
matter  was  reported  to  him  he  approved  what  had  been 
done,  but  said  that  it  was  not  in  his  power  to  pay  the  costs 
of  a  trial  not  strictly  legal.  Just  what  was  illegal  does  not 
appear,  unless  it  was  the  execution  of  the  death  penalty, 
for  which  the  governor  said  there  was  no  competent  civil 
court  in  California.  Yet  he  had  already  authorized  the  ex 
ecution  of  this  sentence  at  San  Miguel  without  reference 
to  himself.1  Captain  Bring,  of  the  British  barque  "Janet," 
was  tried  before  an  alcalde  for  receiving  deserters  from  tha 
United  States  navy,  was  found  guilty  and  fined.  Governor 
Mason,  finding  that  "  the  fine  had  been  imposed  in  a  reg 
ular  course  of  law,"  declined  to  interfere  and  directed  the 
alcalde  to  imprison  the  captain  until  it  was  paid.2  What 
the  law  was  that  authorized  a  court  of  California  to  try 
a  foreigner  for  violating  the  laws  of  the  United  States  it 
would  be  hard  to  determine. 

1  H.  Ex.  Doc.,  31   C   i   S.,  no.   17,  pp.  653,  691.  2  Ibid.,  595» 


415]  MILITARY  RULE  IN  CALIFORNIA  231 

To  meet  emergencies  special  tribunals  were  sometimes 
appointed.  In  the  autumn  of  1847  sucn  a  court  was  can- 
vened  in  the  Sonoma  district  to  try  three  men  charged  with 
the  murder  and  kidnapping  of  Indians.  The  bill  of  costs 
presented  to  the  governor  by  the  members  of  this  court  was 
so  enormous  that  he  refused  to  pay  it  and  made  out  one  of 
his  own,  disallowing  two  charges  altogether — one  for  Cap 
tain  Brackett,  who  as  a  military  officer  was  entitled  to  no 
extra  pay  in  civil  service,  and  $200  for  Mr.  Green  as 
"  attorney  for  the  government,"  since  he  had  not  been  ap 
pointed,  and  had  not  appeared  in  court.1  In  April,  1848,  a 
special  court  was  convened  at  Monterey  to  try  three  men 
for  passing  counterfeit  gold  coin  purporting  to  be  the  coin 
of  the  United  States.  It  is  presumed  that  they  were  tried 
according  to  the  Mexican  law,  as  the  governor  asked  the 
alcalde  to  look  up  that  law  on  the  subject.2 

In  the  place  of  courts  of  appeal  the  governor  sometimes 
heard  appellants.  Few  cases  came  before  General  Kearny, 
nor  did  he  seem  disposed  to  interfere  in  such  as  did  come. 
Governor  Mason  usually  refused  to  interfere  where  the 
cases  had  been  decided  by  a  jury.  In  a  few  instances  Gov 
ernor  Riley  ordered  a  stay  in  execution  until  the  case  could 
be  investigated,  or  carried  to  a  higher  court.8  Sometimes 
appellants  were  curtly  told  to  abide  by  the  decision  of  the 
alcalde  or  await  the  organization  of  courts  of  appeal. 

At  last  the  needs  of  the  growing  country  for  a  better 
judiciary  became  so  pressing  that  the  governor  appointed 
some  judges  of  first  instance  and  decided  to  organize  the 
supreme  court.  It  was  the  prerogative  of  the  governor  to 
appoint  the  members  of  this  court,  but  he  requested  the 
people  to  vote  for  them  and  promised  to  appoint  the  men 

1  H.  Ex.  Doc.,  31   C.   i   S.,  no.   17,  pp.  421   et  seq. 

2  Ibid.,  540  et  seq.,  571.       3  Ibid.,  391,  761,  681,  770,  782  et  seq.,  853. 


232  MILITARY  GOVERNMENT 

of  their  choice,  if  competent  and  eligible.  Two  of  the  three 
elected  soon  resigned  and  others  were  appointed.  How 
ever,  this  court  was  organized  only  a  short  time  before  the 
state  government  went  into  operation  and  probably  never 
accomplished  much.1  A  session  was  held  at  Monterey  in 
September,  1849,  but  the  business  before  the  court  was  very 
small,  as  no  appeals  had  been  taken.2 

It  will  be  recalled  that  Sloat  and  Stockton  allowed  the 
officials  to  hold  over  and  promised  the  right  of  election  to 
the  people.  Office-seekers  were  not  wanting,  for  in  the 
election  at  Monterey,  September  15,  1847,  seven  candidates 
appeared  for  the  office  of  alcalde.  The  Rev.  Walter  Colton 
was  elected  by  a  plurality  of  sixty-eight  out  of  three  hun 
dred  and  thirty-eight  votes.  Some  of  the  hold-over  alcaldes 
refused  to  take  the  oath  of  allegiance  to  the  United  States 
imposed  by  General  Kearny,  whereupon  others  were  ap 
pointed.  After  this  the  offices  were  filled  irregularly,  some 
times  by  election,  sometimes  by  appointment.  When  elec 
tions  were  held  the  governor  approved  or  disapproved 
the  results  before  the  alcalde  could  begin  the  discharge  of 
his  duties.  In  at  least  one  case,  at  Los  Angeles,  he  dis 
approved  for  no  other  stated  reason  than  that  he  had  not 
authorized  the  election.  From  other  sources  we  learn  that 
Colonel  Stevenson  thought  the  men  elected  unworthy  to 
serve,  one  on  account  of  his  hatred  of  Americans,  the  other 
because  of  his  ignorance  and  viciousness.  The  removal  of 
these  and  the  appointment  of  Foster  produced  considerable 
discontent  at  first,  but  this  gradually  wore  away.3  Some 
thing  of  a  tempest  was  stirred  up  by  one  arbitrary  removal. 

*H.  Ex.   Doc.,  31   C.   i   S.,  no.   17,  pp.  778,  832,  867. 

2  Burnett,  Recollections  and  Opinions  of  an  Old  Pioneer,  346. 

3  Bancroft,  v,  626. 


MILITARY  RULE  IN  CALIFORNIA  233 

At  the  election  of  September  15,  John  H.  Nash  was 
elected  alcalde  of  Sonoma.  For  some  unknown  reason,  not 
improbably  favoritism,  General  Kearny  ordered  his  removal 
from  office,  April  10,  1847,  and  appointed  L.  W.  Boggs 
in  his  place.  But  Nash  refused  to  vacate  on  the  ground 
that  he  had  been  elected  under  Sloat's  [Stockton's?]  procla 
mation,  and  denied  Kearny's  right  to  remove  him.  Now 
this  Boggs  was  an  ex-governor  and  had  known  Mason  in 
Missouri.  When  he  appealed  to  his  old  friend,  who  had 
succeeded  Kearny,  the  colonel  refused  to  revoke  the  order, 
although  the  people  of  Sonoma  had  petitioned  for  its  rev 
ocation,  saying  that,  while  he  did  not  know  the  reasons 
for  it,  he  felt  bound  to  presume  that  they  were  good  and 
sufficient.  He  then  ordered  Captain  Brackett  to  help  Mr. 
Boggs  search  the  premises  of  Mr.  Nash  and  seize  the  papers 
belonging  to  the  alcalde's  office.  This  order  created  much 
excitement  in  Sonoma  and  Captain  Brackett  asked  to  be 
excused  from  executing  it  inasmuch  as  he  expected  to  settle 
there  and  did  not  wish  to  incur  the  ill  will  of  the  people. 
This  aroused  the  ire  of  Colonel  Mason,  but  Lieutenant  W. 
T.  Sherman  appeased  him  somewhat  and  asked  to  be  sent 
up  to  Sonoma  to  make  a  test  case  of  it.  His  request  was 
granted  and  he  went,  taking  only  one  man,  a  private. 
He  secured  his  prisoner  at  night  and  left  with  him  early 
next  morning  for  Monterey.  When  he  explained  to  Nash 
that  the  government  was  military  and  that  the  will  of  the 
commander  was  supreme,  the  alcalde  confessed  that  he  had 
never  seen  it  in  that  light  and,  being  now  thoroughly  fright 
ened,  expressed  his  willingness  to  surrender  his  office. 
Colonel  Mason  treated  him  kindly  and  released  him  on  his 
promise  to  return  to  Sonoma,  surrender  his  office  to  Boggs, 
and  give  an  account  of  his  acts  while  in  office.1 

1  Sherman,  Memoirs,  i,  30  et  seq.;  H.  Ex.  Doc.,  31  C.  I  S.,  no.  17, 
pp.  295,  317  et  seq. 


234 


MILITARY  GOVERNMENT 


The  right  to  appoint  and  remove  from  civil  office,  says 
Sherman,  was  never  again  questioned  in  California  during 
the  military  regime.  By  this  he  must  have  meant  before 
the  treaty  of  peace,  for  after  that  not  a  little  discontent  did 
arise  on  that  score,  as  we  shall  see  later. 

When  elections  were  held  the  governor  insisted  that  they 
should  be  regular.  Alcaldes  had  to  be  instructed  not  to 
allow  candidates  to  be  judges  of  the  election,  as  had  been 
done  at  San  Jose.  Shortly  after  the  proclamation  of  the 
treaty  an  election  was  held  at  San  Francisco  by  Alcalde 
Leavenworth,  who  imposed  property  qualifications  on  the 
voters  and  excluded  Mexican  citizens.  In  consequence  of 
this,  and  because  due  notice  (three  weeks)  had  not  been 
given,  Governor  Mason  declared  the  election  void  and 
ordered  another  to  be  held.1 

Immediately  after  assuming  command  Governor  Mason 
issued  orders  to  the  commanding  officers  at  all  posts  and 
stations  to  aid  the  civil  magistrates,  when  called  upon,  in 
executing  the  laws  and  carrying  into  effect  their  judicial 
decrees,  directing  them  at  the  same  time  to  perform  this 
duty  in  a  civil  and  courteous  manner,  using  no  more  harsh 
ness  than  was  absolutely  necessary.  Special  orders  for  such 
assistance  were  occasionally  given.  The  lack  of  prisons  fre 
quently  rendered  it  necessary  for  the  civil  authorities  to 
call  upon  the  military  to  guard  their  prisoners.  In  one  case 
a  bill  was  presented  against  the  municipality  of  Santa  Bar 
bara  for  the  support  of  prisoners  by  the  subsistence  de 
partment.2 

Sometimes  the  governor  had  to  restrain  his  military 
subordinates  from  interfering  with  civil  officers.  At  Santa 
Barbara  the  alcalde  informed  Captain  Lippitt  that  the  evi- 

1  H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  p.  662. 

2  Ibid.,  302,  317,  334,  565,  569,  657. 


419] 


MILITARY  RULE  IN  CALIFORNIA 


235 


dence  did  not  warrant  the  conviction  of  two  men  charged 
with  insulting  some  camp  women,  whereupon  the  captain 
took  the  men  out  of  his  jurisdiction.  He  also  proposed  to 
have  a  Calif ornian  tried  according  to  martial  law  for  steal 
ing  a  rope  from  one  of  his  soldiers.  The  alcalde  resigned, 
but  Governor  Mason  asked  him  to  take  charge  again  and 
ordered  Captain  Lippitt  to  cease  from  interfering  in  such 
trifling  matters,  citizens  being  amenable  to  military  tribu 
nals  only  for  high  crimes.  But  the  captain  again  caused 
trouble,  all  about  a  saddle  which  he  demanded  of  the  alcalde 
until  proof  was  furnished  that  no  soldier  had  any  claim 
upon  it.  As  the  alcalde  did  not  deliver  it  with  sufficient 
alacrity,  the  captain  sent  a  squad  of  men  to  arrest  him,  if 
the  saddle  was  not  immediately  given  up.  The  alcalde  did 
not  appreciate  such  high-handed  proceedings  and  again  re 
signed.  Governor  Mason  then  ordered  the  captain  to  re 
store  to  the  alcalde  his  insignia  of  office,  as  also  the  saddle, 
and  to  allow  the  civil  law  to  operate  in  all  cases  of  traffic 
between  citizens  and  soldiers.  Colonel  Stevenson  also  in 
terfered  in  a  case  where  an  alcalde  had  fined  a  woman  for 
selling  liquor  to  an  Indian  contrary  to  'Mason's  proclama 
tion,  and  ordered  a  stay  in  the  execution  of  sentence  until 
the  matter  was  referred  to  him  for  approval.  When  Gov 
ernor  Mason  heard  of  this  he  ordered  the  colonel  to  let 
the  law  take  its  course.1 

But  the  superiority  of  the  military  was  constantly  asserted 
and  sometimes  acted  upon.  An  alcalde  was  informed  that 
even  the  order  of  a  district  commander  must  be  obeyed. 
Nor  did  the  governor  hesitate  to  interfere  directly  with  the 
decisions  of  the  courts,  when  such  interference  seemed  just 
and  necessary.  The  Californians  thought  it  no  perversion 
of  justice  to  retry  cases  which  had  already  been  decided, 

i  H.  Ex.  Doc.,  31   C.  i   S.,  no.  17,  PP-  563,  575- 


236  MILITARY  GOVERNMENT  [42O 

and  the  governor  found  it  necessary  several  times  to  for 
bid  this.1 

So  far  as  concerns  the  legal  right  of  the  commander  to 
interfere,  nothing  need  be  added  to  the  words  of  the  Supreme 
Court  already  quoted.2 

The  town  of  Santa  Barbara  appears  to  be  the  only  place 
on  which  a  military  contribution,  aside  from  the  import 
duties,  was  levied  and  this  was  done  as  a  punitive  measure. 
It  appears  that  a  gun  disappeared  from  the  brig  "Elizabeth," 
which  was  lying  at  anchor  there.  As  the  thieves  could  not 
be  apprehended,  Colonel  Mason  ordered  a  contribution  levied 
on  the  town,  exempting  such  Americans  as  had,  during  the 
late  revolution,  contributed  to  the  American  cause.3 

The  lawfulness  of  such  an  act  was  questionable  even 
then.  In  the  Franco-German  war,  however,  still  severer 
punitive  measures  were  resorted  to  by  the  Germans.4  The 
law  as  agreed  upon  by  the  Hague  Conference  is  that  "  No 
general  penalty,  pecuniary  or  otherwise,  can  be  inflicted  on 
the  population  on  account  of  the  acts  of  individuals  for 
which  it  cannot  be  regarded  as  collectively  responsible."  5 

The  money  thus  collected  at  Santa  Barbara,  $500.50, 
Governor  Riley  offered  (April  30,  1849)  to  return  to  the 
town  for  the  purchase  or  erection  of  a  jail.  A  few  months 
later  he  offered  to  duplicate  from  the  "  civil  fund  "  what 
ever  sum  the  town  might  raise  for  the  erection  of  a  jail 
and  court-room,  the  sum  not  to  exceed  $6,000. 6  As  good 
jails  were  scarce  and  very  much  needed,  similar  proposi 
tions  were  made  to  several  other  towns.7 

1  H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  pp.  292  et  seq.,  301,  412,  507,  565. 

2  Supra,  211.  3  Doc.,  no.  17,  pp.  573,  615. 
4  Hall,  Int.  Law,  491  et  seq.  5  Holls,  449. 

«  Doc.,  no.  17,  pp.  754,  804. 

7  Ibid.,  558 ;  Doc.,  no.  52,  pp.  19,  38. 


42 1  ]  MILITARY  RULE  IN  CALIFORNIA  237 

In  the  spring  and  summer  of  1847  several  Indian  agents 
were  appointed  whose  duty  it  was  to  advise  the  gentile  In 
dians  to  "be  good"  and  look  to  the  President  of  the  United 
States  as  their  great  father,  with  the  assurance  that  he 
always  took  care  of  his  good  children.  The  agents  were 
also  to  look  after  the  "  neophyte  "  or  Christian  Indians  of 
the  missions  and  see  that  they  were  not  oppressed  by  their 
employers.1 

The  story  of  the  missions,  their  secularization,  the  fraud 
ulent  sales,  and  the  consequent  litigation  would  fill  a  con 
siderable  volume.  The  secularization  had  already  been  made 
and  sales  had  begun,  had  been  suspended,  and  had  begun 
again  at  the  time  of  the  conquest.  In  consequence  of  this 
it  was  hard  to  determine  the  true  ownership,  and  the  con 
querors  adopted  the  policy  of  maintaining  them  in  statu  qua 
until  the  question  of  title  could  be  settled  by  competent 
authority.  But  some  changes  were  made  where  rights 
seemed  incontestable,  or  the  public  good  required  them. 
Several  claimants  appearing  for  the  missions  of  San  Jose, 
Santa  Clara,  Santa  Cruz,  and  San  Juan,  General  Kearny 
ordered  the  Catholic  priest  to  take  charge.  A  special  order 
of  ejectment  was  issued  against  the  American  immigrants 
at  Santa  Clara,  but  the  priest  finally  made  terms  with  them 
and  allowed  them  to  remain  as  tenants.  Later  this  priest, 
"  Padre "  Real,  was  inhibited  from  selling  the  mission 
lands  under  a  permit  given  by  General  Castro,  dated  May 
25  and  June  16,  1846.  September  17,  1849,  he  was  re- 
moved  from  the  agency  of  the  missions  for  maladministra 
tion  and  for  selling  and  leasing  the  mission  property.  After 
this  the  management  of  the  property  was  entrusted  to  a 
responsible  citizen.  In  some  cases  alcaldes  had  to  be  en 
joined  from  making  sales  of  mission  lands.  Some  immi- 

:  H.  Ex.  Doc.,  31  C.  i   S.,  no.  17,  pp.  294,  358  et  seq. 


238  MILITARY  GOVERNMENT  [422 

grants  wished  to  settle  upon  the  mission  lands  still  unsold, 
supposing  that  they  were  subject  to  the  preemption  laws, 
but  Governor  Riley  would  not  allow  this.1 

Practically  the  same  policy  was  adopted  in  regard  to 
other  lands.  When  several  claimants  appeared  the  gov 
ernor  would  only  tell  them  to  await  the  organization  of 
tribunals  competent  to  handle  such  matters.  As  the  United 
States  courts  were  rather  slow  in  making  their  appearance, 
the  people,  in  a  few  instances,  endeavored  to  establish  tribu 
nals  to  try  cases  in  which  the  government  was  interested. 
Gold-seekers  were  told  that  they  had  no  legal  right  to  dig 
on  the  public  lands,  but  would  not  be  molested  until  the 
United  States  government  took  action  on  the  matter,  and 
that  the  right  of  individuals  to  work  in  particular  localities 
of  which  they  were  in  actual  possession  would  be  left  to 
the  local  judicial  authorities.  The  Mexican  law  on  the 
"  denouncement "  of  mines  was  abolished  by  Governor 
Mason,  February  12,  1848.  Soon  after  this  he  made  an 
exhaustive  examination  of  two  denouncements  made  just 
before  the  abolition  of  the  law;  one  was  declared  void  be 
cause  the  law  had  not  been  complied  with,  and  the  other 
was  left  for  further  investigation.2 

March  10,  1847,  General  Kearny,  as  governor  of  Cali 
fornia,  issued  a  decree  purporting  to  "  grant,  convey,  and 
release  unto  the  town  of  San  Francisco  ...  all  the  right, 
title,  and  interest  of  the  government  of  the  United  States, 
and  of  the  territory  of  California,  in  and  to  the  beach  and 
water  lots"  in  a  certain  locality  of  said  town,  excepting 
such  as  might  be  selected  by  army  and  navy  officers  for 
government  use,  said  lots  to  be  sold  at  public  auction  for 

!H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  pp.  291,  334,  433,  436,  453,  78?, 
810,  829. 

2  Ibid.,  476,  S5i  e*  seq.t  740,  789. 


423]  MILITARY  RULE  IN  CALIFORNIA  239 

the  benefit  of  the  town.  The  validity  of  this  act  is  dis 
cussed  elsewhere  in  its  relation  to  the  character  of  the  gov 
ernment  under  which  California  was  held.  September  30, 
1847,  Lieutenant  W.  T.  Sherman  informed  the  alcalde  of 
San  Francisco  which  lots  had  been  selected  for  the  United 
States.1  Some  of  these  lots  sold  as  high  as  $600.  Before 
the  end  of  1848  some  changed  hands  at  $10,000. 

About  a  week  after  assuming  charge  of  affairs  Governor 
Mason  said  that  he  had  no  authority  to  grant  lands  in  Cali 
fornia,  since  he  held  only  by  a  belligerent  right,  and  that 
any  grant  he  might  make  would  be  null  and  void  if,  at  the 
definitive  treaty  of  peace,  Mexico  should  retain  California. 
There  was,  indeed,  not  the  slightest  possibility  that  Mexico 
would  ever  recover  California,  but  that  made  no  difference. 
But,  it  being  customary  for  the  alcaldes  to  sell  lots  within 
the  limits  of  their  towns,  the  alcalde  of  Sonoma  was  author 
ized  to  carry  out  so  much  of  General  Vallejo's  instructions 
from  the  Mexican  government  as  related  to  the  sale  of  lots 
in  that  town.  May  9  and  15,  1849,  Governor  Riley  in 
formed  the  alcaldes  of  Monterey  and  San  Diego  that  they 
could  sell  such  municipal  lands  as  had  been  regularly  granted 
to  the  town,  but  that  the  pueblo  or  common  lands  could  not 
be  sold  without  the  authority  of  Congress.2 

III.  EFFICIENCY  OF  THE  MILITARY  ADMINISTRATION 

A  military  governor  must  have  troops  to  enforce  his  de 
crees  and,  on  the  other  hand,  to  give  protection  to  such  as 
submit  to  his  authority. 

The  first  thing  to  be  done  in  California  was  to  secure  its 
conquest.  No  large  force  was  required  to  do  this,  for  in 
April,  1847,  there  were  only  1,059  soldiers  in  the  territory. 

iH.  Ex.  Doc.,  31   C.  i   S.,  no.  17,  PP-  291,  361. 
2  Ibid.,  321,  761,  765- 


240  MILITARY  GOVERNMENT  [424 

The  major  part  of  these  consisted  of  the  New  York  volun 
teers  who  had  been  mustered  into  service  with  the  under 
standing1  that  they  were  to  be  discharged  in  California  or 
Oregon  at  the  end  of  the  war.  The  fleet,  of  course,  ren 
dered  invaluable  service  on  the  coast.  These  forces  were 
indeed  sufficient  to  hold  the  country  against  a  foe  who  never 
came  to  dispute  it  after  the  local  insurrections  described  in 
an  earlier  chapter,  and  to  overawe  such  of  the  inhabitants  as 
may  not  have  liked  the  new  regime;  but  to  give  protection 
was  another  thing. 

Here,  as  in  New  Mexico,  the  Indians  caused  no  little 
annoyance,  especially  on  the  frontiers,  where  they  would 
swoop  down  upon  the  settlers  and  drive  off  their  livestock. 
General  Kearny  said  that  the  Indians,  both  wild  and  Chris 
tian,  had  been  badly  treated  by  most  of  the  Calif ornians  and 
thought  themselves  entitled  to  what  they  could  steal  as  a  rec 
ompense.  He  thought  that  a  few  presents,  such  as  beads,  red 
flannels,  and  tobacco1,  would  help  to  appease  them,  and  made 
a  recommendation  to  that  effect  to  the  Secretary  of  War.  A 
few  such  presents  were  given  from  time  to  time  by  the 
governor,  and  agents  were  appointed  to  deal  with  the  In 
dians,  but  their  depredations  continued,  especially  in  the 
neighborhood  of  San  Luis  Obispo.  The  people  could  not 
even  protect  themselves  for  lack  of  ammunition,  the  impor 
tation  and  sale  of  which  was  prohibited  by  executive  order. 
Colonel  Mason  did  not  send  any  troops  there,  but  advised 
the  alcalde  to  organize  a  company  of  twenty-five  or  thirty 
men  and  hold  them  in  readiness  to  move  at  a  moment's 
warning.  They  would  be  supplied  with  ammunition,  for 
the  proper  use  of  which  the  alcalde  would  be  held  respon 
sible.1 

Some  of  the  trouble  with  the  Christian  Indians  arose  out 

1  H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  pp.  287,  496,  569. 


425]  MILITARY  RULE  IN  CALIFORNIA  241 

of  disputes  about  the  lands  on  which  they  resided.  This 
was  true  in  the  San  Luis  Rey  district  in  particular.  Here 
Colonel  Mason  ordered  the  status  quo  to  be  maintained 
until  the  disputes  could  be  settled  by  the  proper  tribunals. 
Captain  Hunter,  sub-Indian  agent,  was  ordered  to  let  the 
chiefs  know  that,  if  they  desired  the  friendship  and  pro 
tection  of  the  American  government,  they  must  not  only 
abstain  from  depredations  upon  the  citizens  of  California, 
but  must  also  endeavor  to  prevent  other  Indians  from 
committing  them.  He  was  further  advised  to  establish 
some  kind  of  police  among  the  Indians,  making  them  ap 
point  their  own  alcaldes,  and  to  endeavor  to  induce  them 
to  gain  a  comfortable  living  by  cultivating  the  soil.1 

The  difficulty  of  affording  adequate  protection  may  be 
realized  by  glancing  at  the  map.  The  population  was  not 
numerous  and  the  settlements  were  scattered  from  San 
Francisco  to  San  Diego.  In  July,  1848,  Colonel  Mason  de 
clared  that  his  forces  were  hardly  adequate  to  protect  public 
property.2  Soon  after  this  the  volunteers,  who  had  en 
listed  for  the  war,  were  discharged;  the  regulars  deserted 
for  the  gold  fields.  The  dragoons  in  the  south,  who  had 
followed  Kearny  across  the  continent,  had  remained  faith 
ful,  but  the  colonel  felt  that  they  could  not  be  counted  on 
when  brought  to  San  Francisco.  By  September  i  he  ex 
pected  to  have  fifty  soldiers  fit  for  duty  in  California.8 

A  rather  gloomy  view  of  the  conditions  in  the  south  was 
presented  by  Colonel  Stevenson  at  Los  Angeles  (August  20, 
1848).  For  months  past  the  Indians  had  frequently  come 
boldly  into  the  country  and  shot  down  the  people  in  the  road 
and  in  the  fields,  taking  from  them  their  horses  and  other 
movable  property.  Now  that  the  volunteers  had  been  dis- 

1H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  P-  438.  *  Ibid.,  625. 

*Ibid.,  603,  643. 


242  MILITARY  GOVERNMENT  [426 

charged  and  the  dragoons  were  to  be  withdrawn,  there  was 
nothing  to  prevent  them  from  plundering  the  town  itself. 
The  very  best  people  of  the  town,  those  who  had  been  the 
fast  friends  of  the  Americans  in  1846,  complained  that, 
after  all  the  sacrifices  they  had  made,  they  were  now  to  be 
abandoned  to  the  mercy  of  the  Indians  and  the  worthless 
of  their  own  countrymen.  Their  arms  had  been  taken 
from  them  and  now  not  more  than  forty-five  old  muskets, 
left  by  Fremont's  battalion  and  repaired  at  the  expense  of 
the  town,  were  to  be  had  fit  for  use.  The  ammunition 
Colonel  Mason  had  authorized  him  to  issue  would  be  worth 
less  without  guns.  This  picture  he  declared  was  not  imag 
inary,  but  a  true  one ;  and  he  begged,  in  the  name  of  human 
ity  and  our  country,  that,  as  soldiers  could  not  be  sent, 
arms  might  be  issued  to  the  people.  In  consequence  of 
these  representations  the  order  to  Captain  Smith  to  bring 
the  troops  from  Los  Angeles  to  San  Francisco1  was  counter 
manded  and  they  were  left  there  until  December.  The  in 
habitants  of  the  Sonoma  district  were  told  to  rely  upon 
themselves  to  put  down  Indian  depredations.1 

In  addition  to  this  paucity  of  troops  Colonel  Mason  re 
ported  (August  25)  that  there  was  not  a  war  vessel  on  the 
coast  of  California.  He  was  expecting  one,  but  did  not 
believe  that  she  would  remain  long  through  fear  of  losing 
her  crew.2  A  few  months  later  he  reported  that  while 
troops  were  needed,  it  would  be  useless  to  send  them  unless 
Congress  provided  them  with  pay  bearing  some  proportion 
to  the  amount  they  could  make  in  the  country,  and  at  the 
same  time  devised  some  laws  by  which  deserters  and  those 
who  enticed  them  away  could  be  summarily  and  severely 
punished.  Of  the  forty-six  men  who  arrived  in  September 

1  H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  pp.  556,  642,  645,  650. 

2  Ibid.,  603. 


427]  MILITARY  RULE  IN  CALIFORNIA  243 

only  twelve  remained.  The  dragoons  did  not  wait  to  be 
brought  to  San  Francisco  before  deserting.  Of  course  no 
one  was  surprised  at  this  when  laborers  were  seen  to  re 
fuse  eight  dollars  per  day.1 

In  May,  1849,  practically  all  the  forces  had  been  concen 
trated  in  the  placer  district,  Sacramento  valley,  to  assist  in 
maintaining  order,  in  consequence  of  which  the  request  for 
troops  at  San  Luis  Obispo  could  not  be  met.  San  Juan 
Bautista  was  requested  to  elect  an  alcalde,  who  would  be 
entrusted  with  ammunition.  The  government  practically 
confessed  itself  helpless  so  early  as  March  by  issuing  an 
order  to  the  alcaldes,  Indian  agents,  and  others,  begging 
them  to  take  some  measures  to  protect  society  from  the 
Mission  Indians  and  to  save  from  destruction  the  Indians 
themselves  who*,  freed  from  the  restraints  formerly  imposed 
by  the  military  and  ecclesiastical  authorities,  had  contracted 
habits  of  indolence  and  vice.  The  Indian  agents  were  later 
said  to  have  been  of  great  service  among  the  wild  tribes.2 

But  the  Indians  were  not  the  only  enemies  to  law  and 
order  in  California.  The  defect  in  the  judiciary  has  already 
been  noted.  Yet  this,  assisted  by  the  military,  seems  to  have 
met  the  needs  of  the  country  for  a  while  as  well  as  could 
reasonably  have  been  expected  in  a  new  and  remote  country. 
But  the  discovery  of  gold  attracted  adventurers  from  all 
parts  of  the  world,  and  among  these  were  many  of  the  most 
lawless  class,  the  flotsam  of  the  social  sea.  They  came,  too, 
just  at  the  time  when  the  military  authorities  were  least  able 
to  cope  with  them.  Captain  Folsom  and  Lieutenant  Har- 
die,  writing  from  San  Francisco  under  date  of  August  14, 
1848,  represented  existing  conditions  as  intolerable  and  the 
outlook  as  hopeless.  "The  most  mortifying  state  of  things 

1  H.  Ex.  Doc.,  31   C.  i   S.,  no.  17,  pp.  648,  650,  711,  740. 

2  Ibid.,  689,  702,  758,  767,  789- 


244  MILITARY  GOVERNMENT  [428 

prevails  here  at  this  time,"  said  the  former.  "  Offences 
are  committed  with  impunity ;  and  property,,  and  lives  even, 
are  no  longer  safe."  In  the  governor's  own  town,  Mon 
terey,  houses  were  forcibly  entered  and  property  taken  from 
the  owners  in  broad  daylight,  and  the  public  stores  were 
pillaged  with  impunity.  A  band  of  outlaws  ravaged  the 
country  about  Santa  Barbara,  murdering  no  less  than  twelve 
persons  in  two  weeks.  Yet  it  was  the  citizens,  not  the 
military,  who  brought  them  to  justice.  Finally,  May  6, 
1849,  Governor  Riley  issued  a  proclamation  calling  atten 
tion  to  this  lamentable  state  of  affairs,  laying  most  of  the 
blame  for  it  on  "General  Apathy"  and  the  auri  sacra  fames. 
In  closing  he  expressed  the  hope  that  all  good  citizens 
would  assist  the  civil  and  military  officials  in  preserving 
public  order.1 

At  this  very  time  there  was  a  flourishing  organization 
of  citizens  in  San  Francisco,  but  with  a  constitution  based 
on  principles  very  different  from  those  outlined  by  General 
Riley.  It  was  composed  of  the  riffraff  of  the  New  York 
volunteers  and  other  kindred  spirits,  was  called  the  Hounds, 
and  had  its  headquarters  in  a  tent  called  Tammany  Hall. 
Its  object  was  the  support  of  its  members  at  the  expense 
of  the  community  and  the  general  promotion  of  vice.  On 
election  days  the  members  were  on  hand  early  and  voted 
often,  as  in  the  old  Bowery  days,  and  guarded  the  ballot- 
box  while  it  was  being  stuffed.  Their  favorite  color  was 
copper,  whether  in  Mexican,  Chilean,  or  Chinaman.  On 
the  night  of  July  15,  1849,  a^ter  ^  all-day  orgy,  they  raided 
every  Chilean  tent  that  could  be  found  and  despoiled  and 
scattered  the  occupants.  The  next  morning  General  Apathy 
awoke  with  a  start,  rubbed  his  eyes,  and  speedily  took  what 
little  of  the  law  had  been  left  into  his  own  hands,  along 

1  H.  Ex.  Doc.,  31   C.   i   S.,  no.   17,  pp.  613,  680,  691,  760. 


429]  MILITARY  RULE  IN  CALIFORNIA  245 

with  such  of  the  Hounds  as  could  be  captured.  Nobody 
seems  to  have  thought  of  appealing  to  the  governor  for 
help,  nor  is  there  any  evidence  that  he  ever  thought  of 
giving  any.1 

Color  antipathy  was  also  active  in  some  of  the  min 
ing  districts,  where  the  Americans  and  Europeans  banded 
together  and  drove  out  all  Mexicans  and  South  Americans. 
In  the  summer  of  1849  General  Riley  visited  the  mines  and 
reported  that  peace  and  order  were  in  general  well  pre 
served.  However,  he  claimed  no  credit  for  this  to  the 
de  facto  government  of  California,  as  the  miners  in  each 
locality  elected  their  own  judicial  and  police  officers  and 
sustained  their  decisions  and  official  acts  with  regularity 
and  energy.  No  doubt  these  officers  sometimes  exercised 
powers  not  strictly  legal,  but  the  general  result  had,  he 
affirmed,  been  for  the  preservation  of  order  and  the  dis 
pensation  of  justice.2 

Regarding  the  character  of  the  higher  officials  in  Cali 
fornia  little  need  be  added  to  what  has  been  brought  out 
in  the  narrative.  Perhaps  enough  has  already  been  said 
about  the  adventurer  Fremont,  who  tried  to  exercise  the 
functions  of  governor  for  a  while.  General  Kearny's  term 
was  short,  but  apparently  satisfactory  to  the  Californians 
and  to  his  superiors.  Colonel  Mason  ruled  longest  and  as 
acceptably  as  could  have  been  expected  while  occupying  a 
position  then  regarded  by  everybody  as  so  anomalous  and 
at  the  same  time  facing  problems  becoming  more  and  more 
complex.  He  had  been  in  the  army  some  thirty  years,  but 
had  never  occupied  such  a  position  before  and  probably  had 
read  very  little  about  it  in  the  books  on  war.  A  careful 
reading  of  his  official  papers  must  convince  any  one  that  he 

1  Bancroft,   Popular   Tribunals,   i,   76  et  seq. 

2  H.  Ex.  Doc.,  31   C.  i   S.,  no.   17,  Pp.  7§7  et  seq. 


246  MILITARY  GOVERNMENT  [430 

realized  the  importance  of  the  trust  committed  to  him  and 
that  he  desired  to  perform  his  duties  in  such  a  way  as  to 
meet  the  approval  of  his  superiors  and,  so  far  as  possible 
with  the  defective  machinery  at  his  command,  to  give  the 
Californians  a  good  government.  He  was  something  of 
a  watch-dog  over  the  treasury,  but  the  writer  is  unable 
to  say  whether  the  sum  which  he  borrowed  from  the  "  civil 
fund  "  was  ever  paid  back.  No  detail  or  appeal  seemed 
too  trivial  to  merit  his  notice,  whether  is  was  ordering 
a  man  to  stop  taking  tiles  from  an  old  uninhabited  mis 
sion  to  repair  a  house  said  by  him  to  have  been  burnt  by 
Fremont's  order,  or  directing  another  to  return  two  mill 
stones  to  a  Catholic  priest.  Just  what  his  views  were  on  the 
temperance  question  is  not  known,  but  he  issued  very  per 
emptory  orders  to  Captain  Lippitt  to  break  up  the  gambling 
dens  and  grog-shops  at  Santa  Barbara.  General  Riley  also 
was  an  old  soldier,  likewise  watchful  of  public  and  private 
interests  in  small  affairs.1  Sometimes  the  mind  which  looks 
so  closely  to  the  smaller  details  lacks  what  is  requisite  for 
larger  things.  However,  it  would  hardly  be  fair  to  attrib 
ute  the  mistakes  made  by  the  governors  in  their  appoint 
ments  to  office  to  their  inability  to  estimate  men.  They 
probably  did  the  best  they  could  with  the  information  and 
material  at  hand,  with  society  in  a  state  of  flux  and  flow, 
and  under  conditions  which  they  did  not  feel  at  liberty  to 
alter. 

For  his  subordinates  Colonel  Mason,  in  his  reports,  had 
only  words  of  praise.  H.  W.  Halleck,  then  a  lieutenant  of 
engineers,  served  as  secretary  of  state  from  August  13, 
1847,  to  tne  en(i  °*  tne  military  regime  and  wrote  many 
of  the  executive  orders  and  letters.  Of  all  the  men  in  Cali 
fornia  he  was,  perhaps,  the  best  informed  respecting  the 

1  H.  Ex.  Doc.,  31   C   i   S.,  no.   17,  pp.  550,  649,  702. 


43 1  ]  MILITARY  RULE  IN  CALIFORNIA  247 

rights  and  duties  of  a  military  occupant.  A  few  years  after 
leaving  California  he  published  a  book  on  international  law, 
generally  recognized  as  a  standard  work,  in  which  these 
matters  are  thoroughly  discussed.  General  W.  T.  Sher 
man  also>,  then  a  lieutenant,  was  in  California  for  a  while 
and  sometimes  rendered  his  services  to  the  "  civil "  gov 
ernment,  though  never  an  official  in  it. 

Colonel  Mason  was  especially  warm  in  his  praise  of 
Colonel  J.  D.  Stevenson,  who  had  command  of  the  southern 
district,  declaring  that  he  possessed  in  a  peculiar  degree 
the  tact  and  firmness  required  to  preserve  discipline  among 
his  men  and  harmony  among  the  inhabitants.  Colonel 
Mason  probably  had  forgotten  the  occasion  on  which  he 
had  to  restrain  this  very  officer  from  interfering  with  the 
civil  affairs  of  his  district,  though  this  was  done  in  a  very 
courteous  manner,  with  the  statement  that  his  motives  were 
not  questioned.  The  New  York  volunteers  made  no  very 
enviable  reputation  in  California,  but  those  stationed  at 
Los  Angeles  under  the  immediate  command  of  Colonel 
Stevenson  appear  to  have  been  more  orderly  than  some  of 
the  others.  "  The  time  for  discharge,"  said  Colonel  Stev 
enson,  "  found  many  a  poor  fellow,  after  two  years  of  faith 
ful  service,  without  a  dollar  beyond  the  small  amount  due 
as  wages;  and  if  they  pay  the  few  small  debts  they  owe 
here,  they  will  not  have  money  sufficient  to  buy  a  pair  of 
shoes ;  and  I  know  that  many,  if  not  all  at  this  post,  possess 
so  high  a  sense  of  honor  that  they  would  go  barefooted 
rather  than  leave  in  debt  to  any  one  in  the  town.  Thank 
God,  all  here  have  acted  honorably  and  fairly  to  the  people 
of  the  country,  and  I  trust  they  will  do  so  to  the  end!" 
Concerning  the  efficiency  of  the  service  at  this  place  Colonel 
Mason  said :  "  I  will  warrant  that  at  no  previous  time  in 
that  district  were  life  or  property  so  secure,  the  magistrates 
of  the  country  so  effectually  supported,  and  industry  en- 


248  MILITARY  GOVERNMENT  [432 

couraged,  as  during  the  past  two  years;  one  common  cry 
of  regret  arose  at  the  order  for  their  disbandment;  the  little 
petty  (sic)  causes  of  complaint  were  forgotten  in  the  re 
membrance  of  the  more  substantial  advantages  they  had  en 
joyed  under  the  protection  of  the  military."  *  In  the  spring 
of  1849  some  friction  arose  between  the  civil  and  military 
authorities  in  this  district,  but  the  trouble  does  not  appear 
to  have  been  serious. 

But  one  officer  of  Colonel  Stevenson's  regiment,  Captain 
F.  ].  Lippitt,  stationed  at  Santa  Barbara,  was  not  so  suc 
cessful.  His  readiness  to  interfere  with  the  civil  authori 
ties  has  already  been  noticed.2  When  he  called  upon 
Colonel  Mason  (July  16,  1847)  f°r  reinforcements  to  repel 
a  threatened  attack  by  the  Calif ornians  the  colonel  declared 
that  this  state  of  affairs  was  due  entirely  to  the  lawless  acts 
of  violence  committed  upon  the  people  by  the  New  York 
volunteers.  Some  months  later  Colonel  Mason  again  wrote 
that  he  had  heard  many  unfavorable  reports  of  these  men, 
one  of  which  characterized  their  conduct  as  a  "  disgrace 
to  their  country."  3 

Discharged  soldiers  were,  of  course,  no  more  subject  to 
military  control  than  were  the  citizens,  but  some  of  them 
seem  to  have  taken  their  discharge  as  a  special  license. 
When  the  three  companies  from  Lower  California  were  dis 
charged  at  Monterey  some  of  them  committed  gross  acts 
of  pillage  upon  public  and  private  property,  and  took  forc 
ible  possession  of  a  public  building  belonging  to  the  town 
authorities,  which  they  occupied  for  some  days  and  wantonly 
injured  to  a  considerable  extent:  Deserters  also  affected 
to  retain  for  a  while  the  right  to  levy  contributions  upon 
public  and  private  property,  plundering  ranches  on  the  road 

1  H.  Ex.  Doc.,  31   C.   i   S.,  no.  17,  pp.  644,  651,  767. 

2  Supra,  235.  8  Doc.,  ibid.,  330,  482. 


433]  MILITARY  RULE  IN  CALIFORNIA  249 

to  the  gold  fields  because  unable  to  carry  provisions  with 
them.1 

Throughout  the  greater  part  of  the  military  regime  about 
the  only  subordinate  officials  were  the  alcaldes.  The  elec 
tion  of  the  Rev.  Walter  Colton  at  Monterey  has  already 
been  referred  to.2  He  tells  us  that  he  was  elected  by  the 
citizens  of  Monterey,  but  does  not  say  how  many  sailors 
considered  themselves  as  citizens  on  election  day.  He  dis 
pensed  justice  for  some  time  as  best  he  could  from  his  sense 
of  right  and  a  very  imperfect  knowledge  of  Spanish  and 
American  law  and  Californian  custom.  He  summed  up 
his  power  by  saying  that  there  was  not  a  judge  on  any 
bench  in  England  or  the  United  States  with  powers  so  ab 
solute.  A  few  days  before  the  election — he  had  already  been 
appointed  alcalde  by  Commodore  Stockton — Mr.  Colton 
summoned  the  first  jury  ever  impaneled  in  that  part  of  the 
country.  One-third  of  this  jury  were  Mexicans,  one-third 
Calif  ornians,  and  the  rest  Americans.  With  the  exception 
of  the  Americans  they  spoke  the  Spanish  language.  The 
plaintiff  spoke  English,  the  defendant  French,  and  the  wit 
nesses  all  the  languages  known  to  California.  The  parties 
to  the  suit  accepted  the  verdict  without  a  word  of  dissent 
and  the  inhabitants  expressed  their  satisfaction  with  jury 
trial  as  affording  no  opportunity  for  bribery.  But  juristic 
duties  were  not  allowed  to  interfere  with  ecclesiastical.  "  I 
often  plan  my  sermons,"  says  the  alcalde,  "  while  some 
plaintiff  is  spinning  a  long  yarn  about  things  in  general, 
or  some  defendant  is  losing  himself  in  a  labyrinth  of  apol 
ogetic  circumstances,  .  .  .  My  text  might  often  be,  '  And 
he  fell  among  thieves,'  "  3  Either  the  alcalde's  sense  of 
right  or  Californian  custom  must  have  been  somewhat  per- 

1  H.  Ex.  Doc.,  31  C.  i  S.,  no.   17,  PP-  651,  899.          2  Supra,  232. 
8  Colton,  Three  Years  in  California,  45,  47,  55. 


250  MILITARY  GOVERNMENT  [434 

verted  at  times,  judging  by  his  own  account.  Fining  a  man 
ten  dollars  for  charging  eight  dollars  for  a  pair  of  prison- 
door  hinges  and  for  using  angry  words  when  arraigned 
by  the  alcalde  for  the  excessive  charge  can  hardly  have 
been  according  to  either  Mexican  or  American  law.1  When 
we  consider  his  varied  duties  and  pursuits — fishing,  hunting, 
and  running  a  newspaper,  in  addition  to  those  already 
named — it  can  hardly  be  surprising  if  irregularities  some 
times  crept  in.  About  the  time  of  the  proclamation  of 
peace  a  native  lodged  a  formal  complaint  against  his  official 
conduct,  but  Governor  Mason  replied  that  interference  was 
now  unnecessary,  as  peace  had  been  proclaimed;  besides, 
the  proper  courts  for  the  settlement  of  litigation  would  soon 
be  established.  Mr.  Colton's  successor,  Alcalde  Esquer, 
found  the  books  of  the  land  office  in  bad  shape,  the  record 
not  showing  what  lands  had  been  sold  by  his  predecessor 
and  what  were  still  saleable.2 

May  28,  1847,  George  Hyde  was  appointed  alcalde  of 
San  Francisco,  the  third  since  the  American  occupation. 
By  October  i,  Colonel  Mason  had  received  three  petitions 
for  his  removal.  As  charges  of  a  serious  nature  were 
made  against  him,  the  colonel  appointed  the  town  council 
a  committee  to  investigate  them  and  report  to  him.  Some 
months  later  they  reported  that  they,  "  having  been  by  you 
entrusted  with  the  affairs  of  Mr.  George  Hyde,  would  re 
spectfully  recommend  his  removal  from  office."  Thereupon 
the  colonel  called  for  the  record  of  their  proceedings,  with 
the  evidence  on  each  charge.  Their  reply  showed  that  only 
two  charges  had  been  investigated,  nor  was  the  evidence 
in  regard  to  these  given.3  Bancroft  thinks  that  most  of 

1  Colton,  Three  Years  in  California,  240. 

2H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  pp.  594,  761. 

3  Ibid.,  306,  494,  499  **  ^eq. 


435]  MILITARY  RULE  IN  CALIFORNIA  2$I 

the  trouble  was  due  to  personal  enmities,  business  cliques, 
and  newspaper  rivalries.  About  this  time  Mr.  Hyde  re 
signed,  but  later  he  took  a  prominent  part  in  the  "  legis 
lative  assembly,"  of  which  we  shall  hear  more  hereafter. 

Mr.  Hyde's  successor  soon  left  for  the  mines,  whereupon 
the  people  petitioned  for  the  appointment  of  Lieutenant 
Edward  Gilbert,  but  this  Colonel  Mason  refused  on  the 
ground  that  his  duties  as  an  officer  of  the  army  would  not 
allow  it.  Another  man  was  then  asked  for,  but  the  colonel 
refused  this  also  and  ordered  an  election.  After  two  elec 
tions,  the  first  being  annulled  by  the  governor  for  reasons 
given  elsewhere,  Dr.  T.  M.  Leavenworth,  who  was  elected 
both  times,  assumed  the  duties  of  the  office.  This  gentle 
man  seems  to  have  been  careless  in  some  respects  and  arbi 
trary  in  others.  His  conduct  was  one  of  the  causes  which 
led  to  the  "  legislative  assembly."  The  sweeping  charges 
made  by  that  body  against  alcaldes  in  general,  but  evidently 
aimed  at  Dr.  Leavenworth,  will  be  set  forth  later.  The  ex 
cuse  given  by  Governor  Riley  for  not  investigating  these 
charges  was  that  there  was  no  "  legal  tribunal "  for  that 
purpose;  besides,  there  being  no  other  magistrate  in  that 
district,  he  could  not  with  propriety  remove  him.  A  specific 
charge  was  for  assuming  authority  to  order  the  transfer  of  an 
important  prisoner  to  Sonoma  and  allowing  him  to  escape. 
For  this  he  was  rebuked  by  Governor  Riley,  who  informed 
him  that  only  the  governor  could  authorize  such  orders. 
Complaint  followed  complaint,  one  being  from  a  native  that 
the  alcalde  was  trying  to  deprive  him  of  his  property  with 
out  legal  measures,  until  Governor  Riley  finally  overrode 
his  scruples  about  a  "  legal  tribunal "  and  appointed  a 
committee  to  investigate  the  charges  and  see  if  there  was 
sufficient  cause  for  his  removal.  The  same  day  Dr.  Leaven 
worth  was  suspended  from  office,  but  was  restored  June  i. 


252  MILITARY  GOVERNMENT  [436 

Soon  after  this  his  resignation  was  sent  in,  and  was  ac 
cepted  to  take  effect  upon  the  election  of  his  successor.1 

William  Blackburn  served  as  alcalde  of  Santa  Cruz  nearly 
two  years,  being  appointed  by  Governor  Mason  in  June, 
1847.  A  few  weeks  after  this  appointment  a  jury  found 
Pedro  Gomez  guilty  of  wife-murder  and  Blackburn  had 
him  hanged  two  days  later.  When  Governor  Mason  repri 
manded  him  for  not  following  the  law  and  custom  of  re 
ferring  serious  cases  to  the  governor,  the  alcalde  replied 
that  there  was  no  doubt  of  the  man's  guilt  and  that  there 
was  no  use  to  make  any  fuss  about  it.  On  another  occa 
sion  he  administered  the  Mosaic  law  of  "  an  eye  for  an 
eye  and  a  tooth  for  a  tooth  "  in  a  trivial  case  which  should 
have  been  settled  in  the  nursery.2 

Among  Governor  Ri ley's  last  appointments  was  that  of 
William  B.  Almond,  whose  commission  was  dated  October 
i,  1849,  but  who  did  not  open  court  until  December  12, 
just  eight  days  before  Governor  Riley  laid  down  the  reins 
of  government  which  had  long  been  slipping  from  his 
hands.  Almond  had  been  a  peanut-vender,  but  was  recom 
mended  by  the  members  of  the  supreme  court,  and  by  the 
Hounds,  too,  if  we  may  believe  Bancroft,  though  that  fra 
ternity  had  been  broken  up  some  months  before  according 
to  the  same  author.  His  jurisdiction  was  limited  to  civil 
cases  only,  and  the  rendering  of  justice  in  these  was  soon 
made  far  more  lucrative  than  peanut  selling.  The  judge's 
"  ounce  "  (venality)  became  a  by- word.  His  trials  were 
never  long  drawn  out.  One  witness  would  be  singled  out 
and  asked  to  tell  a  straightforward  story,  after  which  the 
decision  was  rendered.  In  one  case  he  assumed  admiralty 
jurisdiction  and  awarded  one  hundred  dollars  salvage  to  a 

1  H.  Ex.  Doc.,  31  C  i  S.,  no.  17,  pp.  568,  662,  749,  755,  758,  774,  782. 

2  Hittell,  History  of  California,   ii,   659  et  seq.;   Colton,   388. 


437]  MILITARY  RULE  IN  CALIFORNIA  253 

boatman  who  had  picked  up  a  dismantled  launch.  But  on 
learning  that  the  boatman's  counsel  fees  and  court  costs 
amounted  to  two  hundred  dollars  he  raised  the  judgment 
to  that  amount.  The  owner  refusing  to  pay,  the  launch 
was  sold  for  one  hundred  and  fifty  dollars  and  he  was 
compelled  to  pay  the  other  fifty.1 

But  it  would  not  be  fair  to  estimate  the  character  of  all 
the  alcaldes  in  California  by  those  just  mentioned.  The 
few  soldiers  and  sailors  who  served  in  that  capacity  do  not 
call  for  notice  for  anything  specially  good  or  specially  bad. 
Several  Mexican  names  occur  in  the  correspondence  with 
the  alcaldes.  They  appear  to  have  been  about  on  a  par 
with  others,  both  as  to  the  uprightness  of  their  intentions 
and  knowledge  of  how  to  conduct  their  offices,  a  little  better 
in  the  former,  perhaps,  than  some  who  have  claimed  more 
space. 

1  Bancroft,  California  Inter  Pocula,  591  et  seq.;  H.  Ex.  Doc.,  31  C. 
i  S.,  no.  17,  p.  832. 


CHAPTER  VII 
END  OF  THE  MILITARY  REGIME 

I.  MANIFESTATIONS  OF  DISCONTENT  AND  THE  CALL  FOR 
A  CONSTITUTIONAL  CONVENTION 

WHEN  the  period  under  review  is  considered  as  a  whole, 
real  grievances  and  causes  of  discontent  are  not  hard  to 
find.  Nor  is  the  reason  for  this  far  to  seek.  Perhaps  some 
of  the  troubles  might  have  been  avoided  by  prompt  action 
on  the  part  of  those  with  whom  the  responsibility  rested  at 
the  end  of  the  war,  but  that  all  of  them  could  have  been  is 
not  a  conclusion  so  easily  reached. 

Viewed  in  the  abstract,  the  rights  and  duties  of  the  mili 
tary  occupant  are  simple  enough.  The  natural  inference  is 
that  the  political  system  and  private  law  of  a  country  en 
joying  a  fair  degree  of  internal  peace  are  suited  to  the 
needs  of  the  inhabitants  and  acceptable  to  them.  Even  if 
not,  it  does  not  appear  to  be  the  duty  of  the  military  occu 
pant  to  alter  them,  nor  his  right,  except  so  far  as  his  own 
interest  and  safety  may  be  concerned.  Under  ordinary  cir 
cumstances,  then,  one  would  expect  the  old  system  to  be 
continued  with  a  reasonable  degree  of  satisfaction  to  the 
inhabitants.  Had  there  been  nobody  in  California  between 
the  years  1846  and  1850  except  the  people  whom  Commo>- 
dore  Sloat  found  there  when  he  first  raised  our  flag  at 
Monterey,  the  story  of  those  years  would  have  been  far 
different  from  that  which  has  been  related.  But  suddenly 
California  awoke  from  a  long  and  dreamy  sleep  and  her 
254  [438 


439]  END  OF  THE  MILITARY  REGIME  255 

joints  cracked  and  her  bones  ached  as  did  those  of  Rip  Van 
Winkle  after  his  long  sleep  beside  the  Hudson,  with  this 
difference,  however — her  pains  were  those  of  growing 
youth,  not  of  decrepit  old  age. 

The  bonds  of  society  began  to  loosen  with  the  very  land 
ing  of  the  Americans;  or  perhaps  it  would  be  more  nearly 
correct  to  say  that  the  new  society  which  was  forming  there 
soon  realized  the  necessity  of  again  drawing  closer  the 
bonds  which  had  been  loosened  or  broken  in  the  weary 
trail  over  the  plains  or  the  long  voyage  by  sea.  A  gov 
ernment  administered  under  the  old  laws  and  on  the  old 
principles  might  have  satisfied  the  needs  of  the  Calif ornian 
asleep  in  the  sun  or  of  the  Mexican  twanging  the  strings 
of  his  guitar  or  dancing  the  gay  fandango,  but  a  new  life 
was  pouring  upon  the  shores  of  the  Pacific.  To  endeavor 
to  confine  this  in  the  old  shackles  was  only  to  repeat  the 
mistake  of  putting  new  wine  into  old  bottles.  Where  the 
saving  strength  lay  we  shall  soon  learn.1 

We  are  told  that  some  discontent  was  manifested  by  the 
Calif ornians  over  the  failure  of  their  new  masters  to  keep 
Commodore  Stockton's  promise  that  they  should  share  in 
their  own  government,  at  least  to  the  extent  of  electing 
their  own  local  officers,  but  if  such  discontent  ever  really 
existed,  it  never  became  serious  on  the  part  of  the  natives. 
A  question  of  vital  concern  was  that  of  the  taxes.  Alcalde 
Colton  has  left  us  an  epigrammatic,  not  to  say  hysterical 
account  of  California's  woes  in  this  respect :  "  Through  the 
exactions  of  the  customs-house  the  comforts  and  neces 
saries  of  life  were  oppressively  taxed.  No  article  of  food 
or  raiment  could  escape  this  forced  contribution ;  it  reached 

1  It  is  hardly  necessary  to  repeat  here  that  the  delay  on  the  part 
of  Congress  in  providing  a  government  for  California  was  caused  by 
the  inability  of  the  political  parties  in  that  body  to  come  to  an  agree 
ment  over  the  question  of  excluding  slavery  from  the  new  territory. 


256  MILITARY  GOVERNMENT  [440 

the  plough  of  the  farmer,  the  anvil  of  the  smith ;  the  blanket 
that  protected  your  person,  the  salt  that  seasoned  your  food, 
the  shingle  that  roofed  your  cabin,  and  the  nail  that  bound 
your  coffin."  1  There  is  other  evidence  that  the  tariff  pro 
claimed  by  order  of  the  President  in  1847  was  slightly  bur 
densome,  but  it  was  generally  acquiesced  in,  at  least  till 
the  end  of  the  war.2  What  was  done  by  the  authorities  in 
California  to  lighten  the  burdens  that  were  most  oppressive 
has  already  been  brought  out  in  the  course  of  the  narrative. 
Nevertheless,  some  of  the  policies  connected  with  the 
tariff  appear  to  have  been  in  effect  oppressive.  One  of  these 
was  to  exact  duties  in  lawful  money.  Since  the  amount 
of  circulating  medium  was  small  and  the  expenses  of  the 
government  were  very  light,  this  policy  soon  resulted  in 
the  congestion  of  a  large  part  of  the  ready  money  in  the 
territorial  chest.  To  relieve  this  situation  the  governor  for 
a  while  allowed  the  collectors  to  receive  gold  dust  on  de 
posit,  apparently  at  a  higher  rate  than  the  dust  then  com 
manded  in  San  Francisco,  its  value  having  depreciated 
owing  to  the  lack  of  coin  and  of-  minting  facilities.  Still 
one  must  believe  that  not  a  little  of  the  discontent  was  due 
to  the  previous  training  of  the  Americans,  for  it  was  they 
by  whom  the  restiveness  was  manifested.  Recalling  the 
lessons  conned  in  their  school  histories,  they  now  declared 
that  they  were  being  taxed  without  their  consent,  and,  a 
thing  which  aggravated  the  situation  all  the  more,  were  not 
compensated  with  a  government  competent  to  secure  liberty 
and  property.  The  American  mind  is  nothing  if  not  legal, 
a  fact  which  added  all  the  more  to  the  odium  with  which 
the  government  of  California  was  regarded,  since  many  be*- 

1  Three  Years  in  California,  397. 

2  Memorial  by   California's   Senators  and   Representatives   elect,   H. 
Misc.  Doc.,  31  C  i  S.,  no.  44,  p.  3. 


441  ]  END  OF  THE  MILITARY  REGIME  257 

lieved  that  its  right  to  existence  ceased  with  the  conclusion 
of  peace.1  Moreover,  the  very  name  of  military  govern 
ment  was  odious  to  Americans.  Had  they  not  carefully 
subjected  the  military  to  the  civil  power  in  their  funda 
mental  law?  To  the  feeling  of  hatred  of  military  govern 
ments  in  general  was  added  that  of  contempt  for  this  ona 
in  particular;  for  had  it  not  confessed  its  weakness  in 
acknowledging  that  it  had  no  powers  of  legislation  and  in 
telling  the  people  that  they  must  look  to  themselves  for 
protection  ? 

The  feeling  of  need  for  a  government  of  defined  powers 
found  expression  so  early  as  February,  1847,  m  *ne  de 
mand  of  Dr.  Robert  Semple,  editor  of  the  California 
Star,  for  a  constitutional  convention.  The  doctor  justified 
the  demand  by  the  declaration  that  alcaldes  all  over  the 
country  were  "  assuming  the  power  of  legislatures,  issuing 
and  promulgating  their  bandos,  laws  and  orders,  and  op 
pressing  the  people."  2  If  there  was  any  alcalde  assuming 
such  powers  at  the  time,  it  must  have  been  the  doctor's 
own  partner,  the  Rev.  Walter  Colton,  for  we  have  seen 
elsewhere  that  he  boasted  of  powers  greater  than  those  of 
any  judge  in  England  or  the  United  States.  But  such  of 
the  natives  as  had  held  over  probably  were  astonished  at 
this  charge.  Sometimes  complaints  were  made  of  stretches 
of  authority,  in  the  abuse  of  which  American  officers 
must  share  the  blame;  but  complaint  was  also  made  of 
the  powerlessness  of  the  alcaldes,  and  the  governor  occa 
sionally  had  to  order  them  to  assume  greater  authority. 
Later  on  the  alcaldeship  became  the  centre  around  which 
gathered  a  struggle  of  no  little  import. 

!H.  Misc.  Doc.,  31   C.  i   S.,  no.  44,  PP-  4  **  seq.;  Burnett,  Recol 
lections  and  Opinions  of  an  Old  Pioneer,  294,  311  et  seq. 
2  Bancroft,  vi,  261. 


258  MILITARY  GOVERNMENT  [442 

About  the  time  that  the  tariff  began  to  be  something  of 
a  real  burden,  Dr.  Semple  published  an  article  (October  21, 
1848)  in  which  he  argued  against  the  legality  of  these  ex 
actions,  declaring  that  the  ports  of  California  were  "  as 
free  as  the  island  of  Juan  Fernandez  "  until  the  revenue 
laws  of  the  United  States  were  extended  over  them.1  At 
the  same  time  the  discontent  was  being  fomented  from  with 
out.  The  motives  back  of  the  letter  of  Senator  Benton 
to  the  people  of  New  Mexico  and  California  may  not  have 
been — probably  were  not — very  bad,  but  the  letter  itself  must 
be  characterized  as  remarkable,  not  to  say  seditious.  Writ 
ing  under  date  of  August  27,  1848,  he  said: 

While  your  condition  is  anomalous  and  critical  and  calls 
....  for  the  most  exalted  patriotism  on  your  part,  the  tem 
porary  civil  and  military  government  established  over  you,  as  a 
right  of  war,  is  at  an  end.  The  edicts  promulgated  by  your 
temporary  Governors  (Kearny  and  Mason,  each  an  ignoramus) 
so  far  as  these  edicts  went  to  change  the  laws  of  the  land, 
are  null  and  void,  and  were  so  from  the  beginning  .  .  . 

Having  no  lawful  government,  nor  lawful  officers,  you  can 
have  none  that  can  have  authority  over  you  except  by  your 
own  consent.  Its  sanction  must  be  the  will  of  the  majority.  I 
recommend  you  to  meet  in  convention* — provide  for  a  cheap  and 
simple  government — and  take  care  of  yourselves  until  Congress 
can  provide  for  you. 

Imports  which  have  paid  no  duties  to  the  United  States 
should  pay  them  to  you  moderately,  so  as  not  to  repress  trade, 
OT  burthen  consumers:  say  20  per  centum  on  value  whence 
imported.2 

Just  when  this  letter  was  received  in  California  is  not 
known  to  the  writer.  It  was  published  in  the  Alia  Call- 

1  Bancroft,  vi,  266.  *  Niles,  Ixxiv,  244. 


443  ]  END  OF  THE  MILITARY  REGIME  259 

fornia  of  January  n,  1849.  A  month  before  this  the  local 
movement  for  the  organization  of  a  government  for  Cali 
fornia  had  begun  to  take  definite  shape.  December  n, 
1848,  a  public  meeting  was  held  in  the  alcalde's  office  at 
San  Jose,  over  which  Charles  White,  the  former  alcalde, 
presided.  This  assembly  called  a  convention  to  meet  at 
San  Jose  on  the  second  Monday  in  January  to  form  a 
civil  government,  and  elected  three  delegates  to  it.  This 
call  was  concurred  in  by  meetings  held  at  San  Francisco 
December  21,  at  Sacramento  January  6  and  8,  and  at  Mon 
terey  some  time  in  January.  The  resolutions  adopted  at 
San  Francisco  claimed  that  the  duties  collected  in  California 
since  the  treaty  of  peace  rightfully  belonged  to  California. 
Those  adopted  at  Sacramento  recited  that,  Congress  having 
failed  to  extend  the  laws  of  the  United  States  to  California, 
the  citizens  were  left  without  any  laws  for  the  protection 
of  life  and  property;  and  that,  in  view  of  the  frequency  and 
impunity  with  which  crimes  were  committed,  it  was  neces 
sary  and  proper  to  form  a  provisional  government  to  enact 
laws  and  appoint  officers  to  administer  them  until  Con 
gress  should  see  fit  to  extend  the  laws  of  the  United  States. 
Both  of  the  latter  assemblies  appointed  committees  of  corre 
spondence  and  suggested  March  5,  1849,  as  tne  day  o* 
meeting.  Soon  afterwards,  however,  the  San  Francisco 
committee  proposed  a  postponement  to  May  6,  on  account 
of  the  inclemency  of  the  weather  and  the  prospect  of  action 
by  Congress.  The  postponement  was  carried  over  the  pro 
tests  of  the  Sacramento  delegates,  and  later  the  meeting 
was  again  deferred  till  the  first  Monday  in  August.  Noth 
ing  ever  came  of  this  call.1 

The  chaotic  condition  of  affairs  was  now  pressing  so 
heavily  that  three  districts,  Sonoma,  Sacramento*,  and  San 

1  Bancroft,  vi,  269  et  seq.;  Burnett,  296,  317;   Colton,  op.   cit.,  373. 


26o  MILITARY  GOVERNMENT  [444 

Francisco,  took  measures  for  the  organization  of  local  legis 
lative  bodies.  Those  of  Sonoma  and  Sacramento  soon  dis 
solved,  but  that  of  San  Francisco  deserves  more  extended 
notice. 

December  27,  1848,  an  election  was  held  at  San  Fran 
cisco  for  a  town  council,  an  instrumentality  of  government 
authorized  by  Governor  Mason  more  than  a  year  before. 
A  majority  of  the  old  council  declared  this  election  void 
because  unqualified  voters  had  been  allowed  to  participate, 
and  ordered  a  new  one  for  January  15,  1849.  The  Alta 
California  tells  us  that  four-fifths  of  the  citizens  regarded 
this  as  an  unwarranted  assumption  and  refused  to  partici 
pate  in  the  January  election.  However,  an  election  was 
held  and  resulted  in  two  sets  of  councilmen  claiming  office 
at  the  same  time.  The  situation  soon  became  serious  and 
a  public  meeting  was  called  for  February  12.  When  this 
body  met  it  was  asked  to  pass  upon  a  sort  of  constitution, 
consisting  of  a  preamble  and  two  articles  of  several  sec 
tions,  prepared  in  advance  by  Mr.  Hyde,  the  former  alcalde. 
This  constitution  provided  for  the  election  of  a  legislature 
to  make  laws  not  repugnant  to  the  Constitution  of  the 
United  States  or  the  common  law,  and  of  three  justices  of 
the  peace,  all  to  hold  office  one  year,  unless  sooner  super 
seded  by  competent  authorities  of  the  United  States  gov 
ernment,  or  by  the  prospective  provisional  government,  or 
by  action  of  the  people  of  the  district.  After  adopting  this 
constitution  the  assembly  called  for  the  resignation  of  both 
the  town  councils  and  appointed  a  committee  to  see  that 
the  request  was  complied  with. 

Monday  evening,  March  5,  1849,  tne  "  Legislative  As 
sembly  of  the  District  of  San  Francisco  "  met  at  the  Public 
Institute  and  proceeded  to  business.  It  was  a  unicameral 
body  of  fifteen  members  and  organized  by  the  election  of 
Francis  J.  Lippitt  as  speaker.  A  special  committee  of  three 


445]  END  °F  THE  MILITARY  REGIME  26l 

was  then  appointed  to  confer  with  the  judges  of  the  dis 
trict  and  report  a  code  of  laws  as  soon  as  practicable.  A 
temporary  treasurer  was  appointed  and  empowered  to  re 
ceive  the  funds  from  the  officers  of  the  late  government. 
A  committee  was  then  appointed  to  wait  upon  General  Per- 
sifor  F.  Smith  and  Commodore  Thomas  C.  Jones,  the  senior 
military  and  naval  officers  in  California,  and  secure  their 
approval  of  the  "  assembly's  "  work. 

In  justifying  the  "assembly"  the  committee  said  in  sub 
stance  :  The  Mexican  law  had  been  declared  to  be  in  force, 
but  had  never  been  promulgated  to  the  people.  The  only  ex 
isting  judicial  officer,  the  alcalde,  never  could,  and  never  did, 
administer  that  law;  but  all  civil  and  criminal  cases  were 
determined  according  to  his  notions  of  right  and  wrong. 
His  will  alone  was  law,  and  this  arbitrary  power  had  been 
abused  for  the  purpose  of  gratifying  personal  malice  and 
of  promoting  his  aggrandisement.  Appeals  were  sometimes 
heard  by  the  governor,  sometimes  the  right  of  appeal  was 
denied  or  evaded.  This  condition  of  affairs  led  inevitably 
to  the  conclusion  that  the  Mexican  law  had  never  been 
actually  in  force  since  the  American  occupation  and  that 
there  was  no  sanction  of  government  in  California.  The 
committee  further  were  of  the  opinion  that  this  was  the 
view  of  the  President  and  of  Congress;  for,  if  the  Mexican 
law  had  been  in  use,  there  must  necessarily  have  been  a 
government  organized  de  facto,  requiring  an  executive 
power  to  see  that  the  law  was  duly  administered.  It  would 
have  been  the  duty  of  the  President  to  nominate,  and  of 
the  Senate  to  confirm,  an  executive  for  that  purpose.  The 
President  had  said  in  his  last  annual  message  that  he  had 
"  advised "  the  people  of  this  territory,  upon  their  "  pre 
sumed  consent,"  to  submit  to  the  government  set  up  by  the 
military  as  the  government  de  facto,  which  it  was  not. 
This  advice,  though  never  received  until  this  time,  had  been 


262  MILITARY  GOVERNMENT  [445 

followed  to  a  certain  degree  until  the  system  became  too 
oppressive.  As  the  President  had  merely  advised,  and  left 
the  matter  to  the  consent  of  the  people,  it  was  clear  that 
the  consent  of  the  people  must  first  be  obtained  before  the 
government  could  be  de  facto  in  force;  and,  without  that 
consent  being  given,  they  had  the  right  to  create  any  gov 
ernment  deemed  necessary  for  their  protection. 

General  Smith  merely  expressed  his  opinion  as  to  the 
legality  of  their  action  and  gave  some  advice  for  the  future. 
The  military  government  set  up  in  the  course  of  the  war 
had,  he  said,  been  continued,  after  the  treaty  of  peace,  as  a 
government  de  facto,  which  could  be  superseded  by  Congress 
alone,  that  body  having  exclusive  power  to  legislate  for 
the  territories.  The  consent  of  the  people  must  be  pre 
sumed,  because  no  people  would  intentionally  fall  into  a 
state  of  anarchy,  which  would  be  the  only  alternative  were 
the  de  facto  government  abrogated  before  Congress  pro 
vided  another.  He  did  not  question  their  motives,  but 
thought  that  the  opinion  of  those  in  authority  at  Wash 
ington,  which  was  decidedly  against  the  proposed  action, 
should  be  deferred  to.  There  was  not  only  the  disposition, 
but  also  the  law  and  power,  to  remove  and  punish  any 
officer  clearly  proved  to  be  guilty.1 

This  was  not,  however,  the  kind  of  advice  which  the 
"legislature"  was  seeking  and  it  pursued  the  uneven  tenor 
of  its  way.  May  i  General  Smith  reported  that  judges 
were  being  appointed  with  a  view  to  trying  certain  cases 
in  which  the  government  was  interested  before  the  estab 
lishment  of  the  United  States  court.  It  was  not  his  pur 
pose  to  employ  the  military  force  to  overthrow  these  usur 
pations,  unless  absolutely  driven  to  it,  but  he  asked  for  the 

1  H.  Ex.  Doc.,  31  C.  i  S.,  no.  17,  pp.  729  et  seq.;  Bancroft,  vi,  271 
et  seq.;  Burnett,  307  et  seq. 


447]  END  OF  THE  MILITARY  REGIME 

opinion  of  the  attorney-general  as  to  what  course  Governor 
Riley  should  pursue  to  stop  the  proceedings  of  these  illegal 
tribunals.1 

At  last  Governor  Riley  appears  to  have  realized  the  neces 
sity  of  taking  some  action.  The  course  adopted  was  to 
suspend  Alcalde  Leavenworth,  the  chief  occasion  of  the 
trouble,  and  order  an  investigation  of  his  conduct,  with 
the  results  already  described.2  On  the  same  day  he  issued 
a  soothing  proclamation,  saying  that  he  had  been  directed 
by  the  Secretary  of  War,  while  acting  as  governor  of  Cali 
fornia,  to  use  the  military  to  assist  the  civil  authorities  in 
executing  the  laws  and  maintaining  public  tranquillity.  All 
good  citizens  were  called  upon  to  give  their  cordial  aid  and 
cooperation  in  this  work.3 

Meantime  the  "  legislative  assembly  "  continued  its  ses 
sions,  enacting  laws,  creating  and  filling  offices,  such  as 
register,  sheriff  and  treasurer,  and  imposing  and  collecting 
taxes.  The  office  of  alcalde  was  abolished,  and  when  the 
people  had  elected  three  justices  Dr.  Leavenworth  was 
ordered  to  hand  over  the  records  of  his  office  to  one  of 
these,  Myron  Norton,  who  had  presided  at  the  primary 
assembly.  Dr.  Leavenworth,  however,  was  not  so  ready  to 
obey  and  had  to  be  forcibly  dispossessed. 

This  action  called  forth  another  proclamation  (dated  at 
Monterey,  June  4)  from  Governor  Mason,  in  which  he  re 
cited  the  misdeeds  of  "  a  body  of  men  styling  themselves 
'  the  legislative  assembly  of  the  district  of  San  Francisco ' : 
and  warned  all  persons  "  not  to  countenance  said  illegal 
and  unauthorized  body,  either  by  paying  taxes  or  by  sup 
porting  or  abetting  their  officers."  All  good  citizens  were 
further  called  upon  to  assist  in  restoring  the  alcalde's  rec 
ords  to  their  lawful  keeper,  and  in  sustaining  the  legally 

lH.Doc.,idid.,740.       *  Supra,  251.       3H.  Doc.,  idid.,  758,  760. 


264  MILITARY  GOVERNMENT  [448 

constituted  authorities  of  the  land.  The  next  day  he  gave 
notice  of  the  acceptance  of  Dr.  Leavenworth's  resignation, 
appointed  judges  and  inspectors  of  elections,  among  whom 
were  some  who  had  taken  part  in  the  "  assembly,"  and 
ordered  them  to  see  that  all  vacancies  in  the  town  govern 
ment  were  filled.1 

Along  with  these  appeared  another  and  more  important 
proclamation,  dated  June  3,  1849.  The  first  part  of  this 
paper,  which  attempted  to  justify  the  general's  claim  to  the 
position  of  governor  and  to  remove  the  prejudice  against 
the  de  facto  government  by  declaring  that  it  was  civil  and 
not  military,  has  already  been  quoted.2  As  some  endeav 
ored  to  justify  the  proceedings  of  the  legislative  assemblies 
by  comparing  the  condition  of  California  to  that  of  Oregon, 
where  the  people  had  assumed  legislative  powers,  the  gov 
ernor  now  pointed  out  that  their  conditions  were  not  sim 
ilar.  Oregon  was  without  laws,  while  California  had  a 
system  of  laws  which,  as  in  the  case  of  Louisiana,  con 
tinued  in  force,  so  far  as  not  in  conflict  with  the  Consti 
tution  and  laws  of  the  United  States,  until  altered  by  com 
petent  legislative  authority.  As  Congress  had  failed  to 
organize  a  new  territorial  government  it  had  become  his 
imperative  duty  to  take  some  active  means  to  provide  for 
the  existing  wants  of  the  country.  This  could  best  be  done 
by  putting  in  full  vigor  the  administration  of  the  existing 
laws  and  completing  the  organization  of  the  civil  govern 
ment  by  the  election  and  appointment  of  all  officers  recog 
nized  by  law.  Accordingly  it  was  ordered  that  elections  be 
held  for  certain  officers,  especially  the  judges  of  the  supe 
rior  court,  prefects  and  sub-prefects.  At  the  same  time 
delegates  should  be  chosen  to  a  convention  which  should 

1H.  Ex.  Doc.,  31   C.  i  S.,  no.  17,  pp.  773  et  seq. 
*  Supra,  211  et  seq. 


449]  END  OF  THE  MILITARY  REGIME  26$ 

meet  September  i,  to  form  a  state  constitution,  or  a  terri 
torial  organization,  to  be  submitted  to  the  people  and  then 
to  Congress,  The  districts  were  named  and  a  specific  num 
ber  of  delegates  was  allotted  to  each,  with  the  proviso  that, 
if  any  district  should  think  itself  entitled  to  a  greater  num 
ber  of  delegates,  it  might  elect  additional  ones  whose  ad 
mission  would  depend  upon  the  will  of  the  convention.  The 
places  for  holding  the  election  and  the  qualifications  for 
suffrage  also  were  prescribed.  The  proclamation  closed 
with  the  statement  that  this  was  the  course  advised  by  the 
President  and  by  the  Secretaries  of  State  and  War  as  most 
likely  to  avoid  the  innumerable  evils  which  would  neces 
sarily  result  from  any  attempt  at  illegal  local  legislation. 
For  this  reason  it  was  hoped  that  the  good  citizens  would 
approve  the  plan  and  unite  to  carry  it  out.1 

The  information  upon  which  this  action  was  taken  must 
have  been  unofficial,  for  the  Hon.  Thomas  Butler  King,  the 
confidential  agent  of  the  new  administration,  did  not  reach 
San  Francisco  until  June  4.  As  he  did  not  stop  at  Mon 
terey  his  instructions  cannot  have  been  communicated  by 
him  to  General  Riley.2  However,  the  general's  action  was 
in  harmony  with  those  instructions  which  ordered  Mr. 
King  to  "  assure  them  [the  people  of  California]  of  the 
sincere  desire  of  the  Executive  of  the  United  States  to  pro 
tect  and  defend  them  in  the  formation  of  any  government, 
republican  in  its  character,  hereafter  to  be  submitted  to 
Congress,  which  shall  be  the  result  of  their  own  deliberate 
choice.  But  let  it  be,  at  the  same  time,  distinctly  under 
stood  by  them  that  the  plan  of  such  a  government  must 
originate  with  themselves,  and  without  the  interference  of 
the  Executive."  3 

1  H.  Doc.,  ibid.,  776  et  seq.  2  Ibid.,  no.  59,  p.  5. 

s  Ibid.,  no.  17,  p.  10. 


266  MILITARY  GOVERNMENT 

June  14,  the  Alta  California  contained  an  "  Address 
to  the  People  of  California  from  the  *  Legislative  Assem 
bly/  "  a  paper  prepared  several  days  before.  After  speak 
ing  of  the  mixed  character  of  Californian  society,  the  ad 
dress  continued: 

But,  perfectly  anomalous  as  may  be  the  state  of  our  popu 
lation,  the  state  of  our  government  is  still  more  unprecedented 
and  alarming.  We  are  in  fact  without  government — a  com 
mercial,  civilized,  and  wealthy  people,  without  law,  order,  or 
system,  to  protect  and  secure  them  in  the  peaceful  possession 
of  those  rights  and  privileges  inestimable,  bestowed  upon  them 
by  their  Creator,  and  holden  by  the  fundamental  principles  of 
our  country,  to  be  inalienable  and  absolute. 

For  the  first  time  in  the  history  of  the  "  model  republic," 
and  perhaps  in  that  of  any  civilized  government  in  the  world, 
the  Congress  of  the  United  States,  representing  a  great  na 
tion  of  more  than  twenty  millions  of  freemen,  have  assumed 
the  right,  not  only  to  tax  us  without  representation,  but  to  tax 
us  without  giving  us  any  government  at  all — thus  making  us 
feel,  endure,  and  bear  all  the  BURTHENS  of  government,  with 
out  giving  us  even  a  distant  glimpse  of  its  BENEFITS 

Under  these  circumstances,  and  impressed  with  the  urgent 
necessity  of  some  efficient  action  on  the  part  of  the  people  of 
California,  the  Legislative  Assembly  of  the  district  of  San 
Francisco  have  believed  it  to  be  their  duty  to  earnestly  recom 
mend  to  their  fellow  citizens  the  propriety  of  electing  twelve 
delegates  from  each  district  to  attend  a  general  convention  to 
be  held  at  the  Pueblo  de  San  Jose  on  the  third  Monday  of 
August  next,  for  the  purpose  of  organizing  a  government  for 
the  whole  Territory  of  California,  ....  and  to  form,  if  they 
upon  mature  deliberation  should  deem  it  advisable,  a  State 
Constitution,  to  be  submitted  to  the  people  for  their  ratification 

or  rejection  by  a  direct  vote  at  the  polls From  the  best 

information,  both  parties  in  Congress  are  anxious  that  this 
should  be  done.1 

1  Burnett,  320. 


45 1  ]  END  OF  THE  MILITARY  REGIME 

On  its  face  this  appeared  like  an  open  defiance  of  Gov 
ernor  Riley,  since  he  had  appointed  a  different  time  and 
place  for  holding  the  convention.  An  editorial  paragraph 
explained  that  the  "  Legislative  Address  "  had  been  pre 
pared  and  adopted  before  the  publication  of  General  Riley's 
proclamation  in  San  Francisco,  and  that  it  therefore  had 
no  reference  to*  or  necessary  connection  with  that  docu 
ment.  Internal  evidence  shows  that  it  was  prepared  after 
the  arrival  of  the  "Edith,"  May  28,  and  possibly  after  that 
of  Mr.  King,  June  4,  with  the  information  that  the  revenue 
laws  had  been  extended  to  the  new  territory.  Mr.  Peter 
H.  Burnett,1  who  had  presided  over  the  Sacramento  meet 
ing  in  January  and  had  now  become  a  leading  member  of 
the  "  legislative  assembly,"  prepared  the  "  Address,"  in 
entire  ignorance,  he  says,  of  General  Riley's  intended  procla 
mation.  But  whatever  may  have  been  the  circumstances 
of  its  preparation,  it  could  have  been  suppressed,  had  its 
sponsors  been  disposed  so  to  do,  for  the  governor's  procla 
mation  was  known  in  San  Francisco  June  9,  five  days  before 
the  "  Address  "  appeared. 

June  12,  a  "  large  and  enthusiastic  mass-meeting  of  the 
citizens  of  San  Francisco"  was  held  in  Portsmouth  Square. 
Mr.  Burnett  first  addressed  the  meeting,  and  closed  by  pre 
senting  the  Hon.  Thomas  Butler  King,  who  "responded 

1  Peter  H.  Burnett  was  born  in  Nashville,  Tennessee,  November  15, 
1807.  Nashville  was  then  a  pioneer  settlement  and  was  thoroughly 
imbued  with  the  pioneer  spirit.  As  civilization  moved  westward  he 
kept  pace  with  it,  and  finally  landed  in  Oregon,  where  he  arrived  in 
time  to  take  part  in  the  popular  movement  for  the  organization  of  a 
government  and  was  elected  a  judge  of  the  superior  court.  The  dis 
covery  of  gold  in  California  proved  the  magnet  which  drew  him  to 
that  country.  Here  also  he  took  a  leading  part  in  public  affairs  and 
sought  to  apply  the  principles  of  squatter  sovereignty  which  he  had 
seen  carried  out  in  Oregon.  He  was  prominent  in  the  movement  for 
a  state  government  and  was  elected  first  governor  under  the  new 
constitution. 


268  MILITARY  GOVERNMENT  [452 

to  the  call  with  his  accustomed  eloquence  and  ability." 
After  a  few  more  speeches  resolutions  were  brought  for 
ward,  the  first  of  which  declared  that,  as  Congress  had  failed 
to  act,  the  people  of  California  had  the  undoubted  right  to 
organize  a  government  for  their  own  protection.  Two 
others  called  for  a  convention  to  form  a  constitution  for  a 
state  government  and  invited  all  to  unite  in  the  effort  "  to 
establish  a  government  in  accordance  with  the  Constitu 
tion  of  our  beloved  country."  If  this  resolution  was 
adopted,  a  committee  of  five  was  to  be  appointed  to  cor 
respond  with  the  other  districts,  fix  an  early  day  for  the 
election  of  delegates,  and  appoint  the  time  for  the  meet 
ing  of  the  convention. 

Some  slight  opposition  to  these  resolutions  was  manifested 
in  the  discussion.  An  amendment  was  proposed  for  the 
adoption  of  the  days  appointed  by  General  Riley.  This, 
however,  was  opposed  by  Colonel  J.  D.  Stevenson  and 
was  voted  down,  whereupon  the  original  resolutions  were 
adopted.1 

Ten  days  after  this  meeting  was  held  Governor  Riley 
issued  another  proclamation  making  further  regulations  for 
the  election  of  delegates  and  officials.  In  closing  he  said: 
"  It  may  not  be  improper  here  to  remark  that  the  instruc 
tions  from  Washington,  received  by  the  steamer  "  Panama," 
since  the  issuing  of  the  proclamation  of  the  3d  instant,  fully 
confirm  the  views  there  set  forth;  and  it  is  distinctly  said 
m  these  instructions  that  '  the  plan  of  establishing  an  in 
dependent  government  in  California  cannot  be  sanctioned, 
no  matter  from  what  source  it  may  come.' ' 

This  warning  from  Secretary  Crawford  was  called  forth 
by  a  sentence  in  a  letter  from  General  Smith,  dated  Mazat- 
lan,  February  15,  1849,  which  read:  "I  find  some  persons 

1  Burnett,  322  et  seq.  2  H.  Doc.,  ibid.,  785. 


453]  END  OF  THE  MILITARY  REGIME  26o 

going  out  armed  with  Colonel  Benton's  letter  to  set  up  a 
government  for  themselves."  1  Exactly  what  Mr.  Craw 
ford  meant  by  "  independent  government "  is  not  clear. 
He  does  not  appear  to  have  had  in  mind  a  government 
absolutely  independent  of  the  United  States,  but  one  set 
up  on  the  lines  suggested  by  Senator  Benton  and  in  control 
of  the  revenue.  Such  a  government,  said  Secretary  Craw 
ford,  would  set  aside  the  laws  relating  to  the  customs  and 
the  postoffice,  which  had  been  extended  to  California,  a 
thing  which  the  President  could  not  tolerate.2  Had  Gov 
ernor  Riley  quoted  the  entire  paragraph,  the  people  might 
possibly  have  guessed  at  a  meaning  which  would  have 
harmonized  it  with  the  instructions  to  Mr.  King,  but  with 
the  one  brief  sentence  given  they  could  only  be  mystified 
and  exasperated.  The  idea  of  instituting  a  government  in 
dependent  of  the  United  States  does  not  appear  to  have 
occurred  to  anybody  and  the  thought  of  such  a  thing  was 
repelled  as  a  libel  upon  the  people  of  California.  If  the 
quotation  did  not  refer  to  this,  what  did  it  mean?  Were 
they  now  forbidden  to  institute  a  government  upon  their 
own  initiative,  a  thing  they  had  been  told  by  Mr.  King 
to  do  ?  3  That  the  Administration  had  no  notion  of  dis 
couraging  the  movement  for  a  state  government  is  shown 
by  a  letter  from  Secretary  Crawford,  dated  June  26,  1849. 
In  this  he  said :  "  The  opinion  is  advanced  that  it  is  the 
right  of  the  people  of  California  to  assemble  by  their  dele 
gates  and  adopt  a  form  of  government  which,  if  approved 
by  Congress,  may  lead  to  their  admission  into  the  federal 
Union  as  one  of  the  confederated  States."  *  The  publica 
tion  of  the  brief  extract  was  unfortunate  and  only  added 
to  the  general  irritation.  The  "  legislative  assembly " 

1  H.  Doc.,  ibid.,  710.  2  Ibid.,  273  et  seq. 

3  Burnett,  327  et  seq.  4  H.  Doc.,  ibid.,  276. 


270  MILITARY  GOVERNMENT  [454 

took  a  parting  shot  at  the  governor  by  declaring  his  procla 
mations  of  June  3  and  4  "uncourteous  and  disrespectful."1 

Meantime  the  committee  of  five  appointed  by  the  public 
meeting  of  June  12  had  gone  to  work  and  soon  found  that 
the  other  districts  were  disposed  to  concur  in  the  dates  fixed 
by  Governor  Riley.  Then  the  committee  not  very  grace 
fully  retired  by  declaring  that  they  did  not  recognize  "  the 
least  power,  as  a  matter  of  right,  in  Brevet  Brigadier- 
General  Riley  to  '  appoint '  a  time  and  place  for  the  elec 
tion  of  delegates  and  the  assembling  of  the  convention," 
but  that,  as  these  matters  were  subordinate  to  the  great 
leading  object — the  attempt  to  form  a  government — in 
which  all  should  be  united,  they  recommended  concurrence 
in  the  time  and  place  mentioned  by  the  general.  They  fur 
ther  expressed  the  opinion  that  some  localities,  the  mining 
districts  in  particular,  had  not  been  given  a  just  proportion 
of  the  delegates  and  recommended  the  selection  of  an  in 
creased  number.2 

Before  leaving  this  subject  it  is  proper  to  remark  that 
the  friction  appears  to  have  been  more  formidable  on  paper 
than  it  was  in  reality.  June  30,  General  Riley  reported 
that  he  had  visited  San  Francisco  and  had  found  that  the 
mere  respectable  members  of  the  so-called  "district  assem 
bly"  were  convinced  of  the  impropriety  of  the  course  pur 
sued  by  that  body  and  that  all  difficulties  would  be  amicably 
arranged.  All  were  desirous  of  securing  a  state  govern 
ment,  but  they  did  not  like  the  idea  of  being  dictated  to  by  a 
military  man,  a  thing  which  they  regarded  as  not  only 
illegal,  but  as  somewhat  odious,  considering  that  the  mili 
tary  should  always  be  subject  to  the  civil  power.  Neither 
appears  to  have  seriously  questioned  the  motives  of  the 

1  Hittcll,  History  of  California,  ii,  716  et  seq. 

2  Burnett,  325  et  seq. 


455]  END  OF  THE  MILITARY  REGIME  271 

other  and  in  the  end  it  became  mainly  a  question  of  tech 
nical  legality.  Speaking  of  General  Riley,  Mr.  Burnett,  one 
of  the  leaders  of  the  assembly,  said :  "  I  bear  a  willing 
testimony  to  his  integrity  and  patriotism.  I  afterwards 
met  him  in  September,  1849,  a^  Monterey,  during  the  sit 
ting  of  the  Convention,  and  had  several  friendly  inter 
views  with  him.  In  one  of  these  he  said  to  me  very  frankly : 
'  Burnett,  you  may  be  correct  in  your  views  in  regard  to 
the  legal  right  of  the  people  of  California  to  form  a  pro 
visional  government.  I  am  no  lawyer,  but  only  a  soldier, 
and  I  know  how  to  obey  orders;  and  when  my  superior 
officer  commands  me  to  do  a  thing,  I  am  going  to  do  it.' 
There  was  no  occasion  to  argue  against  that  conclusion; 
and,  had  there  been  such  an  occasion,  it  would  have  been 
idle  to  contest  the  determination  of  that  honest  and  brave 
old  man."  1 

II.  FORMATION  OF  THE  STATE  GOVERNMENT 

The  elections  were  held  on  the  appointed  day,  August  i, 
1849,  and  by  September  3  the  delegates  were  ready  to 
organize.  The  sessions  were  held  at  Monterey,  in  Colton 
Hall,  a  stone  building  erected  by  Alcalde  Colton,  with  the 
help  of  convict  labor,  and  used  for  school  purposes.  The 
convention  organized  by  electing  K.  H.  Dimmick  chairman 
and  Wm.  G.  Marcy  secretary,  both  of  whom  were  natives 
of  New  York.  In  transmitting  the  certified  list  of  dele 
gates  Secretary  Halleck  recommended  the  admission  of  cer 
tain  additional  delegates  whose  names  were  inclosed.  The 
number  of  those  who  actually  participated  in  the  work  of 
the  convention  was  forty-eight.  Of  these  six  were  natives 
of  California;  the  rest  had  come  from  different  parts  of 
the  United  States,  New  York  being  represented  by  nine, 

1  Burnett,  333  et  seq. 


272  MILITARY  GOVERNMENT  [456 

and  a  few  from  foreign  countries.  .  In  the  final  organiza 
tion  Dr.  Robert  Semple  was  made  president.  Among  the 
prominent  members  were  H.  W.  Halleck,  still  serving  as 
secretary  of  state  under  Governor  Riley,  and  Thomas  O. 
Larkin,  a  native  of  Massachusetts  who  had  gone  to  Cali 
fornia  in  1832,  had  been  our  first  and  last  consul  there,  and 
was  at  one  time  supposed  to  be  the  richest  man  in  America. 
Several  others  were  then,  or  afterwards  became,  prominent 
in  the  affairs  of  California. 

From  the  foregoing  it  may  be  surmised  that  the  con 
vention  was  not  lacking  in  ability,  despite  the  conditions 
under  which  it  had  been  brought  together.  Its  work  was 
done  rapidly  but  reasonably  well  because  of  the  "  slavish 
copying  "  of  the  constitutions  of  New  York  and  Iowa.  No 
objection  was  raised  by  the  southern  delegates  to  the  ex 
clusion  of  slavery,  but  the  debate  waxed  warm  over  the 
settlement  of  the  boundary,  in  which  the  question  of  slavery 
was  involved.  The  insinuation  raised  in  some  quarters 
that  the  convention  was  awed  or  influenced  by  Governor 
Riley  was  denied  by  the  first  Senators  and  Representatives 
as  an  unjust  assault  upon  the  character  of  the  members  and 
upon  the  fame  and  integrity  of  the  governor.1  Mr.  King 
also  denied  that  he  had  any  secret  instructions  from  the 
President,  or  any  one,  to  influence  the  people  of  California 
on  the  subject  of  slavery,  and  declared  that  they  would  bear 
witness  that  he  had  not  sought  to  influence  them.2 

The  schedule  attached  to  the  constitution  provided  that 
all  laws  in  force  at  the  time  of  the  adoption  of  the  consti 
tution  and  not  inconsistent  therewith  should  continue  until 
altered  by  the  legislature,  and  that  the  legislature  should 
provide  for  the  removal  of  all  pending  causes  to  courts 

1  H.  Misc.  Doc.,  31  C.  i  S.,  no.  44,  p.  14. 
*  H.  Ex.  Doc.,  ibid.,  no.  59,  p.  5. 


END  OP  THE  MILITARY  REGIME 

created  by  itself.  The  executive  of  the  existing  govern 
ment  was  requested  to  submit  the  constitution  to  the  people 
for  ratification  or  rejection  on  November  13.  At  the  same 
time  state  officers  and  two  members  of  Congress  were  to 
be  elected.  If  the  constitution  should  be  ratified,  the  legis 
lature  was  to  meet  and  the  state  officers  were  to  be  in 
stalled  December  15,  or  as  soon  thereafter  as  practicable. 
The  constitution  was  signed  October  13,  after  which,  says 
Bancroft,  the  members  drew  a  sigh  of  relief  and  voted  to 
have  a  ball.1 

Meantime  Governor  Riley  continued  to  administer  the 
government  as  before.  Indeed,  he  appears  to  have  looked 
after  it  more  carefully  than  before  the  assembling  of  the 
convention.  Many  officers  were  appointed,  such  as  judges 
of  the  first  instance,  district  attorneys,  prefects,  and  notaries 
public,  and  plaintiffs  were  now  directed  to  lay  their  griev 
ances  before  the  proper  tribunals,  instead  of  the  governor, 
with  the  full  assurance  that  justice  would  ultimately  be 
done.  The  governor  probably  had  some  fears  now  that  the 
remainder  of  the  "  civil  fund  "  would  not  be  turned  over 
to  the  new  state  and  began  to  administer  it  with  a  free 
hand,  giving  several  large  sums  to  municipalities  for  the 
erection  of  jails.  This  policy  of  administrative  activity  was 
followed  up  by  Governor  Riley  to  the  very  end  of  his  term, 
so  that  by  the  time  he  surrendered  the  reins  of  power  the 
new  administration  found  a  more  or  less  organized  system 
already  in  existence,  though  much  creative  and  adjusting 
work  still  had  to  be  done.2 

In  accordance  with  the  wish  of  the  convention,  Governor 
Riley  issued  a  proclamation,  October  12,  submitting  the 
constitution  to  the  people  for  ratification  or  rejection.  While 

1  Bancroft,  vi,  284-304;  H.  Doc.,  no.   17,  pp.  822,  861   et  seq. 

2  H.   Doc.,  no.  52,  pp.   18-40. 


2^4  MILITARY  GOVERNMENT  [458 

expressing  strong  doubts  as  to  the  legality  of  putting  the  new 
government  into  operation  before  it  was  passed  upon  by 
Congress,  he  declared  that  he  would,  at  the  appointed  time, 
cheerfully  surrender  his  powers  to  whomsoever  the  people 
designated  as  his  successor,  unless  otherwise  ordered  from 
Washington.1  December  12,  Governor  Riley  announced 
that  the  constitution  had  been  ratified  by  an  almost  unan 
imous  vote,  in  consequence  of  which  he  declared  the  con 
stitution  of  California  ordained  and  established.  In  regard 
to  this  election  the  memorial  of  the  Senators  and  Repre 
sentatives  to  Congress  said :  "  No  attempt  was  made  to  mis 
lead  or  control  public  opinion  in  relation  to  the  constitu 
tion.  .  .  .  The  truth  is,  that  no  political  result  in  the  his 
tory  of  any  nation  is  more  surely  the  honest  expression  of 
a  public  opinion  founded  in  reason,  reflection,  and  delib 
erate  judgment  than  the  ratification  afforded  by  the  people 
of  California  to  their  constitution." 

The  legislature  met  about  the  middle  of  December.  On 
the  twentieth  Governor  Riley  yielded  his  authority  to  the 
Hon.  Peter  H.  Burnett,  who  had  been  elected  governor, 
and  was  installed  on  that  day.  In  announcing  this  fact 
Governor  Riley  said: 

A  new  executive  having  been  elected  and  installed  into  office, 
in  accordance  with  the  provisions  of  the  constitution  of  the 
State,  the  undersigned  hereby  resigns  his  power  as  governor  of 
California.  In  thus  dissolving  his  official  connection  with  the 
people  of  this  country,  he  would  tender  to  them  his  most  heart 
felt  thanks  for  the  many  kind  attentions,  and  for  the  uniform 
support  which  they  have  given  to  the  measures  of  his  admin 
istration.  The  principal  object  of  all  his  wishes  is  now  ac 
complished — the  people  have  a  government  of  their  own  choice ; 
one  which,  under  the  favor  of  Divine  Providence,  will  secure 

1  H.  Doc.,  no.  17,  pp.  819,  861. 


459]  END  OF  THE  MILITARY  REGIME 

their  own  prosperity  and  happiness,  and  the  permanence  of 
the  new  state.1 

Thus  the  "  anomalous  "  government  which  had  admin 
istered  the  affairs  of  California  for  several  years  was  suc 
ceeded  by  another  hardly  less  anomalous.  For,  though  a 
so-called  state  government  was  now  in  operation,  California 
was  not  admitted  to  the  Union  until  September  9,  1850. 

This  solution  of  the  difficulty  was  quietly  acquiesced  in 
at  Washington.  To  General  Riley's  letter  (October  i, 
1849)  announcing  his  intention  to  yield  to  the  new  state 
government  Secretary  Crawford  replied  (November  28)  : 
"As  the  arrangements  contemplated  by  you  may  already 
have  been  made,  any  instructions  from  this  department  con 
trary  to  your  views  on  the  subject  might  militate  against 
the  peace  and  quiet  of  the  community  and  be  productive 
of  evil.  The  first  consideration  is  a  due  observation  of 
law  and  order;  and  this,  it  is  hoped  and  believed,  will  be 
attained  under  the  new  state  of  things.  It  is  not  doubted 
that  Congress  will  either  recognize  the  constitution  which 
it  is  supposed  the  people  of  California  have  formed  and 
adopted  or  provide  a  territorial  government  for  them.  In 
either  event  the  officers  of  the  army  will  be  relieved  of  the 
necessity  of  participating  in  civil  matters,  so  inconsistent 
with  their  appropriate  public  duties,  and  under  circum 
stances  so  embarrassing,  by  the  absence  of  legislative  author 
ity  to  guide  and  control."  * 

i  H.  Doc.,  no.  52,  p.  40.  *  H.  Doc.,  no.  18,  p.  265. 


BOOK  III 

ALASKA  AND  OUR  INSULAR  POSSESSIONS 


CHAPTER  I 
ALASKA 

THE  treaty  by  which  Alaska  was  acquired  from  Russia 
was  proclaimed  June  20,  1867.  Article  III  stipulated  that 
such  of  the  inhabitants  as  preferred  to  remain  in  Alaska, 
with  the  exception  of  uncivilized  tribes,  should  be  admitted 
to  the  enjoyment  of  all  the  rights,  advantages,  and  immun 
ities  of  citizens  of  the  United  States  and  protected  in  the 
free  enjoyment  of  their  liberty,  property,  and  religion.1 

The  reader  will  at  once  notice  that  this  treaty,  while 
promising  citizenship,  differed  from  previous  treaties  of 
cession  in  making  no  promise  of  incorporation  into  the 
Union.  The  writer  knows  of  no  reason  given  at  the  time 
for  this  deviation,  but  supposes  that  everybody  thought  that 
the  fitness  of  Alaska  for  statehood  was  a  possibility  too 
remote  for  consideration. 

The  country  was  soon  taken  possession  of  by  a  small 
contingent  of  the  army  and  a  few  treasury  officials  were 
sent  out  to  enforce  the  United  States  customs  laws,  which 
were  extended  by  act  of  Congress  in  July,  i868.2  The  in 
ternal  revenue  laws  were  not  extended  till  later.  It  would 
hardly  be  correct  to  say  that  a  government  of  any  kind  was 
established.  So  much  as  existed  for  some  time  was  pater 
nalistic,  presumably  with  beneficent  intentions.  One  of  the 
commandants  acknowledged  himself  unable  to  characterize 

1  Treaties  and  Conventions   (U.  S.),  742. 

2  See    Reports    of    War    and    Treasury    Departments,    1868.      Also 
Atlantic  Monthly,  November,  1898. 

463]  279 


28o  MILITARY  GOVERNMENT  [464 

it,  and  recommended  that  either  a  military  or  a  civil  gov 
ernment  be  established  with  power  and  responsibility  some 
where.  It  was  not  republican  in  the  opinion  of  a  recent 
attorney-general.1  There  was  no  need  of  an  elaborate 
political  system,  for  the  civilized  and  half-civilized  in 
habitants  were  few  in  number,  about  2,000,  besides  2,500 
Aleuts,  a  child-like  people  whom  our  courts  have  since  held 
:to  be  citizens. 

Nobody  in  Washington  knew  or  appeared  to  care  much 
about  Alaska,  and  things  went  on  in  this  way  for  some 
time.  Occasionally  Congress  enacted  or  extended  a  law. 
In  December,  1872,  by  Executive  order,  Alaska  was  added  to 
the  internal  revenue  district  of  Oregon,  after  which  the  Sec 
retary  of  the  Treasury  became  its  virtual  ruler,  if  he  was  not 
already  such  before.  The  President,  it  is  true,  had  a  more 
direct  representative  there,  a  governor,  but  his  duties  were 
many  and  his  powers  were  few.  Trading  companies  and 
even  individuals  shared  in  governmental  power,  especially 
over  half-civilized  and  wild  tribes. 

Twenty-five  years  of  such  rule  resulted  in  the  practical 
extinction  of  some  of  the  fur-bearing  animals,  a  great  de 
crease  in  the  number  of  others,  and  the  impending  extinc 
tion  of  some  of  the  native  inhabitants.  But  the  discovery 
of  gold  and  the  consequent  rush  to  the  Klondike  gave  a 
new  aspect  to  the  situation.  As  a  somewhat  tardy  recog 
nition  of  this  fact  Congress  passed  the  Civil  Code  Bill  for 
Alaska,  June  6,  1900,  and  gave  it  a  territorial  government. 

1J.  W.  Griggs,  Argument  in  Goetze  vs.  U.  S.  (Sup.  Court),  1900- 
1901,  p.  128. 


CHAPTER  II 
THE  ANNEXATION  AND  GOVERNMENT  OF  HAWAII 

JULY  7,  1898,  the  President  signed  a  joint  resolution  of 
Congress  for  the  annexation  of  Hawaii.  This  resolution 
directed  the  appointment  of  five  commissioners,  two  of 
whom  should  be  citizens  of  Hawaii,  to  devise  a  form  of 
government.  Meantime  the  existing  government  was  to 
continue  under  the  direction  of  the  President,  pending  the 
action  of  Congress.  The  officers  of  this  government  were 
to  be  subject  to  removal  by  the  President.  The  treaties  of 
the  United  States  replaced  those  of  Hawaii,  but  the  Hawaiian 
customs  laws  were  retained.1 

During  the  administration  of  President  Harrison  a  treaty 
was  negotiated  with  Hawaii  which  contemplated  its  incor 
poration  as  a  territory,  with  every  prospect  of  ultimate 
statehood.  It  is  worthy  of  note  that  no  such  promise  was 
held  out  in  the  joint  resolution.  It  may  be  that  men  were 
even  then  thinking  that  territory  "  appurtenant  to "  the 
United  States  could  be  held  otherwise.  These  islands  were 
held  and  governed  according  to  the  resolution  for  more 
than  two  years,  April  30,  1900,  a  bill  became  law  giving 
them  a  territorial  government  with  the  right  to  send  a 
delegate  to  Congress.  December  3,  1900,  this  government 
was  inaugurated  with  Mr.  Dole  as  governor. 

1  Current  History,  viii,  319. 
465]  281 


CHAPTER  III 
THE  PHILIPPINES,  PORTO  RICO,  AND  SAMOA 

I.  THE  OCCUPATION  OF  THE  PHILIPPINES 

ON  the  20th  of  April,  1898,  President  McKinley  signed 
a  resolution  of  Congress  which  authorized  him  to  demand 
the  withdrawal  of  Spanish  authority  from  Cuba  and  to  use 
the  army  and  navy  in  effecting  this  result.  As  a  conse 
quence  war  followed  the  next  day.  Public  attention  was 
now  almost  wholly  directed  toward  Cuba,  but  soon  the 
country  was  startled  to  learn  that  on  May  i  Commodore 
Dewey  had  destroyed  the  Spanish  fleet  in  Manila  Bay. 
Preparations  were  at  once  made  in  Washington  to  send  an 
army  to  the  Philippines  and  instructions  were  drawn  up 
(May  19)  for  the  guidance  of  the  occupants. 

These  instructions  announced  the  severance  of  former 
political  relations  and  the  substitution  of  the  military  power 
of  the  United  States,  which  was  declared  to  be  absolute 
and  supreme,  and  to  which  obedience  was  now  due. 
Municipal  laws  relating  to  private  rights  of  persons,  to 
property,  and  to  the  punishment  of  crime  were  to  continue 
in  force,  so  far  as  compatible  with  the  new  order  of  things. 
These  laws  were  to  be  administered  by  the  ordinary  tribu 
nals  substantially  as  they  were  before  the  occupation,  but 
under  the  supervision  of  the  American  commander,  pro 
vided  the  judges  and  other  officers  would  "  accept  the 
authority  of  the  United  States."  Native  officials  would  be 
expelled  and  the  freedom  of  the  people  to  pursue  their 
282  [466 


467]      THE  PHILIPPINES,  PORTO  RICO  AND  SAMOA      283 

accustomed  occupations  abridged  only  in  case  of  necessity. 
But  the  commanding  general  must  be  guided  by  his  judg 
ment,  his  experience,  and  a  high  sense  of  justice,  and  he 
must  pursue  a  course  different  from  that  outlined  above, 
should  the  conduct  of  the  people  render  it  necessary.  All 
public  funds  and  securities  belonging  to  the  government 
in  its  own  right  were  declared  to  belong  of  right  to  the 
occupant.  The  real  property  of  the  state  he  might  hold  and 
administer,  enjoying  the  revenues  thereof.  Private  prop 
erty  was  to  be  respected.  It  was  further  declared  to  be  the 
right  of  a  conqueror  to  levy  contributions  upon  such  sea 
ports,  towns,  or  provinces  of  the  enemy  as  might  be  in  his 
military  possession  by  conquest,  and  to  apply  the  proceeds 
thereof  to  defray  the  expenses  of  the  war,  including  those 
of  administering  the  civil  government  of  the  conquered  ter 
ritory,  the  right  to  be  exercised  in  such  a  way  as  not  to 
savor  of  confiscation.  All  ports  and  places  in  the  actual 
possession  of  our  forces  were  to  be  open  to  the  commerce 
of  all  neutral  nations,  as  well  as  our  own,  upon  the  pay 
ment  of  the  prescribed  rates  of  duty.1 

In  the  latter  part  of  June  the  first  troops  reached  Manila, 
and  these  were  soon  joined  by  a  second  expedition.  July 
26,  Major  General  Wesley  Merritt  arrived  with  a  third  and 
assumed  chief  command.  August  13  the  city  of  Manila 
capitulated  and  was  occupied  by  the  American  troops.  On 
the  2Qth  Major  General  Elwel  S.  Otis  relieved  General 
Merritt  and  became,  by  virtue  of  his  rank,  military  governor 
of  the  Philippine  Islands,  which  position  he  held  until  May 
5,  1900.  He  was  relieved  by  Major  General  Arthur  Mac- 
Arthur,  who  was  in  turn  replaced  by  Major  General  Adna 
R.  Chaff ee,  July  4,  1901. 

The  first  problem  of  importance  to  present  itself  was  the 

1  Richardson,  Messages  and  Papers  of  the  Presidents,  x,  208  et  seq. 


284  MILITARY  GOVERNMENT  [468 

question  of  joint  occupation  and  participation  in  the  con 
trol  of  municipal  affairs  with  the  insurgent  forces,  led  by 
Aguinaldo,  who  had  rebelled  against  Spain.  This,  pur 
suant  to  instructions  from  Washington,  was  promptly 
settled  in  the  negative.1 

General  Merritt  then  appointed  General  MacArthur  pro 
vost-marshal-general  of  the  city  and  instructed  him  to  re 
lieve  the  civil  governor  of  his  functions,  retaining  his  sub 
ordinates  until  it  should  be  necessary  to  replace  them. 
Colonel  C.  A.  Whittier  was  appointed  collector  of  customs 
and  soon  after  was  given  charge  of  all  fiscal  matters.  A 
proclamation  made  the  promises  and  announcements  of 
policy  outlined  in  the  President's  instructions.2 

In  the  latter  part  of  the  year  an  attempt  was  made,  at 
the  request  of  certain  of  its  citizens,  to  occupy  Iloilo,  when 
it  was  abandoned  by  the  Spanish,  but  the  attempt  was 
thwarted  for  some  time  by  the  action  of  the  insurgents. 
While  waiting  in  the  harbor  there  General  Miller  received 
President  McKinley's  instructions  of  December  21.  This 
letter  assumed  that  by  the  reduction  of  Manila  the  con 
quest  of  the  islands  and  the  suspension  of  Spanish  sover 
eignty  therein  had  been  practically  effected  and  that  by  the 
treaty  of  Paris,  signed  December  10,  the  future  control  of 
said  islands  was  ceded  to  the  United  States.  In  view  of 
this  the  military  government  must  be  extended  to  the  whole 
territory  as  soon  as  possible.  In  doing  this  the  beneficent 
intentions  of  the  United  States  must  be  proclaimed.  While 
the  military  government  was  supreme  until  Congress  should 
act,  the  municipal  laws  would  remain  and  be  administered 
as  before,  so  far  as  practicable.3 

1  Richardson,  Messages  and  Papers  of  the  Presidents,  x,  217. 

2  Report  of  War  Department,   1899,  vol.  i,  pt.  4,  pp.   n  et  seq. 

3  Ibid.,  355  et  seq. 


469]     THE  PHILIPPINES,  PORTO  RICO  AND  SAMOA      285 

The  letter  thus  epitomized  was  issued  as  a  proclamation 
at  Iloilo  January  3,  1899,  by  General  Miller,  and  was  re 
ceived  with  derision.  Before  issuing  it  at  Manila  (Janu 
ary  4)  General  Otis  amended  it,  leaving  out  such  words  as 
"  sovereignty,"  "  protection,"  etc.,  as  likely  to  suggest  a 
renewal  of  conditions  which  existed  under  Spain.  General 
Otis  reports  that  the  better  classes  of  the  natives  received 
it  with  satisfaction  as  the  first  authoritative  declaration  of 
the  attitude  and  policy  of  the  United  States,  the  policy  be 
ing  one  which  they  thought  best  for  the  interest  of  the 
Filipinos,  who  were  incapable  of  self-government.  But  the 
amended  edition  also  was  bitterly  attacked,  and  Aguinaldo 
met  it  with  a  counter-proclamation  protesting  against  the 
claim  of  the  United  States  to  sovereignty  over  a  people 
who  had  wrested  it  from.  Spain  by  their  own  blood  and 
treasure.1 

But  the  authorities  at  Washington  seem  to  have  acted  on 
the  assumption  that  the  sovereignty  of  the  United  States 
attached  to  the  whole  Philippine  Archipelago  upon  the  cap 
ture  of  Manila.2  As  early  as  December  4,  before  the  treaty 
had  been  signed,  President  McKinley  assumed  that  the 
islands  would  be  ceded  and  asked  for  the  advice  of  Dewey 
and  Otis  regarding  the  force  and  equipment  necessary  to 
hold  and  govern  them,  a  work  likely  to  devolve  upon  the 
army  and  navy  for  some  time.  We  have  just  seen  that 
soon  after  the  signing  of  the  treaty  instructions  were  given 
(December  21)  for  the  occupation  and  government  of  the 
entire  group,  although,  according  to  the  treaty,  Spain  was 
not  to  begin  evacuation  until  the  ratifications  had  been  ex 
changed.  January  20,  1899,  President  McKinley  addressed 

1  Report  of  War  Department,  1899,  vol.  i,  pt.  4,  PP-  66  et  seq. 

2  Magoon,  Reports  on  Law  of  Civil  Government  in  Territory  Sub 
ject  to  Military  Occupation,  247. 


286  MILITARY  GOVERNMENT  [470 

a  letter  to  the  Secretary  of  State  intended  as  a  guide  for 
the  civil  commission  appointed  a  few  days  before  to  assist 
in  the  peaceful  extension  of  American  authority  and  the 
establishment  of  civil  government.  This  letter  acknowl 
edged  that  the  treaty  had  not  been  ratified,  but  expressed 
the  belief  that  it  would  be  by  the  arrival  of  the  commission 
at  Manila.  The  commission,  consisting  of  three  distin 
guished  civilians  and  two  military  men,  were  informed  that 
the  temporary  military  government  provided  in  the  instruc 
tions  of  December  21  would  continue  until  Congress  should 
otherwise  determine.  Without  interfering  with  this  they 
were  to  study  existing  conditions,  report  upon  them  to 
the  Secretary  of  State,  and  make  such  recommendations  as 
they  should  see  fit.1 

General  Otis,  however,  not  yet  having  received  any  such 
instructions,  appears  to  have  thought  that  the  strict  legal 
rights  of  the  United  States  were  not  so  great.  Under  date 
of  January  16,  1899,  ne  wrote  to  General  Miller:  "Until 
the  ratification  of  the  treaty  of  peace  the  United  States  has 
not  the  legal  right  to  occupy  the  port  of  Iloilo,  except  by 
the  consent  of  Spain.  Spanish  authority  over  the  southern 
islands  of  the  Philippines  remains  intact  until  the  treaty  is 
ratified.  .  /.  [The  action  of  Spain  in  withdrawing  from 
Iloilo],  viewed  in  the  mildest  light,  was  that  of  simple 
abandonment,  for  which  she  is  responsible.  .  .  .  Spain, 
under  a  strict  interpretation  of  international  law,  has  still 
the  right  to  enter  that  port  and  collect  duties  until  that 
right  is  terminated  by  treaty  ratification."  z  The  last  day 
of  the  month  he  wrote  that  it  was  inexpedient  to  enter  upon 
any  course  which  might  embarrass  the  United  States,  should 
the  treaty  fail  of  ratification.  While  it  is  not  certain  that 

1  (First)    Report  Philippine   Commission,  i,   185.  | 

2  Report  War  Department,   1899,  vol.  i,  pt  4,  p.  86. 


471  ]      THE  PHILIPPINES,  PORTO  RICO  AND  SAMOA      287 

the  President  believed  that  our  legal  rights  extended  to  the 
forcible  assumption  of  control  in  abandoned  places,  the 
assumption  of  the  attachment  of  sovereignty  with  the  fall 
of  Manila  would  seem  to  indicate  such  a  construction  of 
international  law.  If  this  be  so,  policy  alone  could  have 
dictated  his  order  not  to  use  forcible  means  for  collecting 
duties  at  Iloilo.1 

But  the  insurgents  precipitated  hostilities  and  Iloilo  was 
captured  February  n.  A  conference  between  General 
Miller  and  several  of  the  more  prominent  citizens  resulted 
in  a  committee  of  the  latter  going  to  Manila  to  report  con 
ditions  and  solicit  aid.  The  troops  asked  for  as  protection 
against  the  Tagalos  and  the  robber  bands  of  the  mountains 
were  sent  and  Colonel  J.  F.  Smith  was  detailed  as  military 
governor.  A  convention  of  delegates  chosen  by  the  people 
was  then  held  ( May  2 1 )  at  Bacalod,  where,  after  two  months 
of  deliberation  under  the  protection  of  Colonel  Smith,  a 
constitution  was  prepared  for  submission  to  the  President 
of  the  United  States.  This  curious  document  scarcely  dis 
guised  its  acknowledgment  of  a  military  despotism,  while 
attempting  to  provide  for  a  quasi  civil  government.2 

With  the  exchange  of  ratifications  of  the  treaty  of  peace 
all  such  questions  of  right  passed  away,  and  further  occu 
pation  was  only  a  question  of  extending  our  influence  by 
peaceable  means  where  no  resistance  was  encountered,  or 
of  overcoming  resistance  where  offered  by  the  Filipino  in 
surgents.  One  case  is  deserving  of  notice,  if  for  no  other 
reason,  because  of  the  novel  situation  in  which  the  United 
States  were  placed. 

It  seems  to  have  been  doubtful  just  what  rights  the 
United  States  acquired  in  the  Sulu  Archipelago,  the  rights 

1  Report  of  War  Department,   1899,  vol.  i,  pt.  4,  P-  87. 

2  Ibid.,  123  et  seq.  \  •'  ' 


288  MILITARY  GOVERNMENT  [472 

of  Spain  there  not  being  clearly  defined  nor  vigorously  ex 
ercised.  The  Sultan  of  Sulu  ruled  by  divine  right  of  the 
Mohammedan  sort,  and  was  supported  or  opposed  by  his 
datos  or  feudal  lords  as  they  saw  fit.  The  social  fabric 
was  built  upon  a  system  of  peonage  or  serfdom,  and  a 
dato's  clan  or  following  submitted  to  his  arbitrary  will 
without  protest.  In  letters  dated  July  3  and  n,  General 
Otis  instructed  General  Bates  how  to  deal  with  this  great 
vassal  of  the  United  States.  In  general  the  relations  for 
merly  existing  between  the  Sultan  and  Spain  were  to  be 
adopted  and  continued.1  August  20,  1899,  a  treaty  was 
signed  which  became  the  subject  of  attack,  both  serious  and 
comic,  in  the  United  States.  By  this  treaty  the  Sultan 
acknowledged  the  sovereignty  of  the  United  States  over 
the  whole  archipelago  of  Jolo  and  agreed  to  allow  the  flying 
of  the  stars  and  stripes.  But  his  "  rights  and  dignities  " 
were  to  be  respected,  the  lands  immediately  about  the  resi 
dence  of  his  highness  were  not  to  be  encroached  upon,  ex 
cept  in  case  of  military  necessity,  and  all  religious  customs 
were  to  be  respected.  Any  slave  should  have  the  right  to 
purchase  his  freedom  by  paying  to  his  master  the  usual 
market  price.  The  trade  of  the  Sultan  and  his  people  with 
the  Philippines,  when  conducted  under  the  American  flag, 
should  be  free.  Moros  should  be  tried  by  the  Sultan's  gov 
ernment  for  all  crimes  against  Moros,  but  all  other  cases 
should  be  disposed  of  by  the  United  States  authorities. 
Full  protection  against  foreigners  was  promised  to  the 
Sultan,  nor  would  the  United  States  sell  any  of  the  islands 
without  his  consent.  The  last  article  provided  a  schedule 
of  salaries  for  the  Sultan  and  his  datos.2 

1  Report  of  War  Department,  1899,  i,  pt.  4,  154  et  seq. 

2  Current  History,  ix,  819  et  seq.;   Report  War  Department,    1899, 
i,  pt.  4,  pp.  152  et  seq. 


473]     THE  PHILIPPINES,  PORTO  RICO  AND  SAMOA      289 

This  agreement  was  approved  by  President  McKinley, 
with  the  reservation  that  it  should  never  be  construed  to 
give  the  consent  of  the  United  States  to  the  existence  of 
slavery  or  polygamy  in  the  Sulu  Archipelago.  It  was  also 
transmitted  to  Congress  "  for  its  information  and  action/' 
but  was  not  submitted  to  the  Senate  as  a  treaty.  No  action 
upon  it  was  ever  taken  by  Congress.  It  was  continued  as 
a  sort  of  modus  Vivendi  until  March  2,  1904,  when  it  was 
abrogated  by  order  of  the  President  because  the  Sultan  and 
his  datos  had  "failed  to  discharge  the  duties  and  fulfill  the 
conditions  imposed  upon  them,"  and  thus  had  "  forfeited 
all  right  to  the  annuities  therein  stipulated  to  be  paid  to 
them."  They  were  informed  that  "  as  residents  of  the 
Moro  Province  they  are  subject  to  the  laws  enacted  therein 
under  the  sovereignty  of  the  United  States." 

II.  MILITARY  RULE  IN  THE  PHILIPPINES 

The  Executive  order  of  May  19,  1898,  directed  the  mili 
tary  occupant  at  Manila  to  take  charge  of  the  customs  and 
the  public  revenues,  the  proceeds  of  which  were  to  be  used  in 
defraying  the  expenses  of  government  and  of  the  army. 
Another  order  (July  12)  gave  out  a  copy  of  the  Spanish 
customs  laws  as  revised  by  the  Secretary  of  the  Treasury 
and  directed  their  enforcement  at  Manila,  but  before  they 
were  received  General  Merritt  had  proclaimed  the  old 
Spanish  laws.  The  Secretary's  revision,  not  being  consid 
ered  suited  to  existing  conditions,  was  not  enforced.  The 
War  Department  then  sent  out  an  expert  on  revenue  mat 
ters,  Captain  J.  S.  Evans,  and  the  result  of  his  study  was 
the  proclamation  of  the  Spanish  laws  of  January  7,  1891, 
which  were  put  in  force  November  10,  1898,  and  so  con 
tinued  until  the  latter  part  of  the  following  year.  Of 
course  the  laws  were  so  altered  as  to  treat  Spanish  goods 


290  MILITARY  GOVERNMENT  [474 

as  foreign.  In  the  summer  of  1900,  by  direction  of  the 
War  Department,  a  board  was  convened  at  Manila  to  revise 
this  tariff.  It  performed  this  task  under  directions  from 
Washington,  at  the  same  time  hearing  complaints  and  sug 
gestions  from  natives  and  residents.  The  revised  tariff 
proposed  by  them  made  no  avowed  discrimination  in  favor 
of  American  goods,  which  were  treated  as  foreign.1  In 
the  course  of  the  year  1901  the  Philippine  Commission 
prepared  a  new  tariff,  which,  after  being  slightly  amended 
by  the  War  Department,  went  into  effect  November  15, 
and  was  made  a  law  of  Congress  by  act  of  March  8,  1902. 
The  revised  tariffs,  as  well  as  the  old  Spanish  tariff  first 
put  in  force,  provided  for  an  export  duty,  a  tax  which  the 
Constitution  forbids  Congress  to  levy  on  goods  exported 
from  any  State. 

The  right  of  the  Executive  to  impose  these  regulations 
in  general  and  the  export  duty  in  particular  was  defended 
in  the  Bureau  of  Insular  Affairs  on  the  following  grounds : 
The  discretionary  war  power  of  the  President,  by  which 
the  tariffs  were  imposed,  is  not  subject  to  judicial  control, 
nor  to  domestic  laws  and  the  Constitution.  The  insurrec 
tion  made  the  Philippines  hostile  territory.  Congress  may 
participate  in  such  power,  but  until  they  act  the  right  be 
longs  to  the  Executive.  His  action  has  since  been  con 
firmed  by  the  Spooner  Amendment  (March  2,  1901).  As 
for  export  duties,  they  may  be  levied  on  goods  passing  from 
a  State  by  the  concurrent  action  of  the  State  and  Congress. 
In  the  territories  the  national  government  may  exercise  the 
powers  of  both  State  and  Federal  governments.  Mexican 
and  Civil  War  precedents  can  be  cited  for  the  levy  of  taxes 
to  control  trade  with  insurgents.2 

1  Magoon,  op.   cit.,  217 ;  Report  War  Department,   1899,  i,  pt.  4,  p. 
313;  ibid.,  1900,  i,  pt.  10,  pp.  79  et  seq. 

2  Magoon,  210  et  seq. 


475]      THE  PHILIPPINES,  PORTO  RICO  AND  SAMOA      291 

The  insurgents  also  took  a  hand  in  customs  affairs,  levy 
ing  heavy  tariffs,  especially  on  exports,  in  such  ports  as 
were  in  their  possession.  In  defiance  of  the  protest  of 
General  Miller,  who  controlled  the  harbor  at  Iloilo,  trade 
was  carried  on  with  the  insurgents  there  and  duties  amount 
ing  to  $15,200  were  paid  to  them,  thus  enabling  them  to 
secure  food  and  arms.1 

While  the  right  to  make  trade  regulations  was  an  in 
cident  of  the  right  to  levy  customs  duties,  their  enforce 
ment  sometimes  presented  troublesome  questions.  When 
the  port  of  Manila  was  thrown  open  merchants  clamored 
for  the  renewal  of  inter-island  trade.  This  the  Americans 
were  powerless  to  give,  as  Spain  still  held  nominal  possession 
of  all  ports  except  Manila.  Through  negotiations  with  the 
Spanish  general,  Rios,  arrangements  were  effected  whereby 
vessels  flying  either  the  Spanish  or  the  American  flag 
might  engage  in  the  trade.  Fictitious  sales  by  the  Spanish 
to  save  their  vessels  from  capture  by  the  insurgents  were 
winked  at  by  the  Americans.  Inter-island  trade,  being  free, 
naturally  was  forbidden  to  all  except  Spaniards,  natives, 
and  Americans  during  the  war,  and  after  that  to  all  except 
natives  and  Americans. 

The  right  to  regulate  trade,  even  to  the  extent  of  for 
bidding  it  under  the  circumstances  then  existing,  seems 
a  matter  too  well  established  to  be  questioned,  yet  the 
owners  of  a  British  vessel,  the  "Will  of  the  Wisp," 
lodged  a  complaint  at  the  State  Department  because  for 
bidden  (May,  1899)  to  trade  with  the  Sulu  Islands,  con 
trary,  it  was  said,  to  the  protocols  of  March  n,  1877, 
and  March  7,  1885,  agreed  to  by  Great  Britain,  Ger 
many,  and  Spain,  which  made  such  trade  free  to  British 
ships.  Damages  to  the  amount  of  $10,000  were  demanded. 

1  Report  War  Department,  1899,  i,  pt.  4,  pp.  45,  85. 


292  MILITARY  GOVERNMENT  [476 

The  matter  was  referred  to  the  War  Department,  which 
cited  the  well-known  rule  that  treaties  of  commerce  do  not 
attach  to  the  soil  upon  a  change  of  sovereignty.1  In  the 
summer  of  the  following  year  (1900)  the  German  ambas 
sador  lodged  a  similar  complaint  because  of  the  contin 
uance  of  the  restrictions  and  declared  that  the  contention 
that  the  protocols  ceased  with  the  change  of  sovereignty 
was  untenable.  He  further  contended  that  Spain  had  never 
acquired  sovereignty,  or  at  least  had  never  secured  recogni 
tion  of  it  over  the  Sulu  Archipelago,  hence  the  United  States 
had  not  acquired  complete  sovereignty  from  her.  He  also 
said  that  the  restrictions  were  contrary  to  the  announced 
open-door  policy.  This,  too,  was  referred  to  Secretary 
Root,  who  held  that  military  necessity  dictated  the  trade 
regulations  and  that  they  did  not  indicate  anything  regard 
ing  the  permanent  tariff  policy  of  the  United  States  in  those 
islands,  or  the  position  of  the  government  concerning  the 
treaties  referred  to.2 

The  coastwise  trade  of  the  islands  and  of  the  interior 
ports  was  not  opened  until  December  21,  i899.3  ^n  spite 
of  watchfulness  on  the  part  of  the  military  occupants,  smug 
gling  and  illicit  trade  of  a  varied  character  were  carried 
on,  and  men  of  every  nationality,  including  Americans, 
seemed  to  be  engaged  in  questionable  enterprises  promising 
individual  gain  or  help  to  the  insurgents.  Heavy  punish 
ments  were  meted  out  when  offenders  were  detected.4 

The  capture  of  the  colonial  treasury  brought  up  ques 
tions  of  local  and  general  import.  Much  annoyance  was 
caused  by  the  application  of  individuals  for  the  return  of 
money,  bonds,  or  securities  held  by  the  former  Spanish 

1  Magoon,  302  et  seq.  2  Ibid.,  338. 

8  Report  War  Department,   1900,  i,  pt.  10,  p.  46. 
*  Ibid.,  1899,  pt.  4,  pp.  S3,  160. 


477]      THE  PHILIPPINES,  PORTO  RICO  AND  SAMOA      293 

government  for  various  purposes,  some,  it  was  claimed,  on 
special  deposit.  But  the  funds  in  the  treasury  had  been  so 
mixed  as  to  make  segregation  almost  impossible,  and  Gen 
eral  Otis  held  that  the  applicants  appeared  to  have  claims 
against  the  Spanish  government,  but  none  against  the 
United  States,  as  all  funds  in  the  treasury  were  surrendered 
as  public  funds.  Whatever  the  source  or  nature  of  these 
funds,  title  to  them  was  now  vested  in  the  United  States 
by  capture,  and  international  law  did  not  require  return  of 
funds  to  individuals  who  had  claims  against  the  govern 
ment  from  which  they  were  captured.  But  when  special 
deposits  were  recognized  they  were  returned.1  This  posi 
tion  was  substantially  approved  by  the  War  Department.2 

Although  General  Otis  claimed  the  captured  funds  as  the 
property  of  the  United  States,  he  placed  them  in  charge 
of  the  "  insular  treasurer,"  an  official  of  the  military  gov 
ernment,  and,  in  order  to  meet  the  demands  of  trade, 
ordered  him  to  exchange  $600  of  Spanish  copper  coins  per 
week  for  local  currency  at  par.  The  Philippine  Commis 
sion  formulated  an  act  repealing  this  order  and  authorizing 
sale  to  the  highest  bidder.  Governor  Taft,  however,  had 
doubts  as  to  the  legality  of  the  matter,  and,  in  view  of  ob 
jections  raised  by  General  MacArthur,  then  in  command, 
referred  the  question  to  the  Secretary  of  War.  The  de 
cision  of  that  officer  was  that  captured  property  belonged 
to  the  United  States  and  could  be  disposed  of  neither  by  a] 
general  nor  a  civil  government  under  his  direction,  but 
only  by  Congress.3 

This  indicates  that  a  distinction  is  made  between  funds 
captured  at  the  time  of  occupation  and  those  secured  through 
administering  the  enemy's  revenue,  for  text-writers  on  in- 


1  Report  War  Department,  1900,  i,  pt.  10,  37  et  seq. 

2  Magoon,  624.  8  Ibid.,  621. 


MILITARY  GOVERNMENT  [478 

ternational  law  hold  that  the  latter  belong  primarily  to  the 
civil  (military)  government,  and  they  have  been  used  by 
the  United  States  in  two  wars  to  support  such  governments 
and  to  meet  the  expenses  of  war.  Accounts  have  been  ren 
dered  to  the  War  Department  instead  of  to  the  Treasury. 
Another  troublesome  problem  arose  out  of  the  applica 
tion  of  several  individuals  for  the  return  of  their  estates, 
which  had  been  "  embargoed  "  by  the  Spanish  authorities 
upon  charges  of  treason.  General  Otis  held  (November 
25,  1898)  that  the  United  States  military  occupation  was 
of  a  temporary  character  and  did  not  place  upon  the  occu 
pant  any  obligation  to  redress  or  even  inquire  into  griev 
ances  alleged  to  have  been  imposed  by  Spain,  especially  if 
only  property  rights  were  affected.  That  the  United  States 
would  not  be  justified  in  setting  aside  the  laws  of  Spain 
and  the  decision  of  her  courts  where  individual  property 
rights  alone  were  affected,  nor  even  the  war  decrees  of 
Spain  promulgated  to  punish  her  refractory  subjects;  that 
the  relief  asked  for  was  civil  in  its  nature  and  should  be 
sought  in  the  civil  courts  of  the  conquered  territory,  which 
had  been  continued;  that  the  case  involved  a  question  of 
United  States  revenue,  since  the  petitioners,  as  Spanish  sub 
jects,  asked  for  the  return  to  them  of  the  public  property  of 
Spain,  the  usufruct  of  which  now  belonged  to  the  United 
States.  For  the  continuance  of  the  embargo  depended  upon 
pardon  or  trial.  Until  such  action  had  been  taken  the  use 
of  the  embargoed  property  belonged  formerly  to  Spain, 
now  to  the  United  States.  Finally,  the  temporary  occupant 
would  be  recreant  to  his  trust  should  he  knowingly  divert, 
without  just  cause,  properties  the  use  of  which  would  again 
inure  to  Spain  upon  the  restoration  of  her  sovereignty. 
Permanent  possession  by  the  United  States  would  present 
the  question  in  a  new  light.1 

1  Report  War  Department,  1899,  i,  pt.  4,  pp.  38  et  seq. 


479]      THE  PHILIPPINES,  PORTO  RICO  AND  SAMOA      295 

In  the  administration  of  the  colonial  treasury  there  was 
for  a  time  a  dual  occupation  of  this  office,  the  Spanish 
officials  dealing  with  such  fiscal  matters  as  pertained  to 
the  parts  still  held  by  them,  which  did  not  owe  obedience 
to  the  United  States.  But  this  arrangement  proved  un 
satisfactory  and  was  soon  abandoned.1 

The  character  of  the  revenue  to  which  the  United  States 
were  entitled  demanded  immediate  attention.  It  was  early 
decided  that  they  could  not  collect  taxes  imposed  for  ser 
vice  in  any  other  part  of  the  world.  The  railway  tax,  be 
ing  a  provincial  tax,  could  not  rightfully  be  collected  while 
only  Manila  was  held.  A  certificate  of  identification,  called 
cedula  personal,  was  required  of  every  resident  of  the 
islands  "  without  distinction  of  race,  nationality,  or  sex, 
over  eighteen  years  of  age,"  except  that  the  Chinese  were 
put  in  a  class  by  themselves.  For  issuing  this  certificate, 
which  also  served  as  passport,  a  fee  was  charged.  This 
tax  was  discontinued  as  too  oppressive  and  because  the 
certificates  were  worthless  beyond  the  American  lines. 
Later,  however,  at  the  request  of  the  inhabitants,  it  was 
revived  and  the  certificates  were  issued  for  a  sum  sufficient 
to  cover  the  cost.  The  special  Chinese  cedula  was  sus 
pended.  No  attempt  was  made  to  collect  any  revenue  from 
licensed  gambling  and  from  such  contracts  as  the  United 
States  courts  would  hold  void  on  grounds  of  public  policy.2 

Only  a  few  words  can  be  devoted  here  to  the  character 
of  the  revenue  laws  and  the  work  of  their  administration. 
It  was  the  policy  of  the  authorities  to  support  the  Insular 
Government  as  far  as  possible  by  the  revenue  from  customs 
and  to  expend  the  internal  taxes  for  matters  of  local  in 
terest.  This  was  an  innovation  on  the  Spanish  rule,  under 

1  Report  War  Department,  1899,  i,  pt.  4,  31,  281  et  seq. 

2  Ibid.,  31,  159,  297. 


MILITARY  GOVERNMENT  [480 

which  all  taxes  collected  were  sent  to  Manila.  Only  about 
thirty  per  cent,  of  the  Spanish  revenue  was  derived  from 
the  customs,  but  this  deficit  was  not  made  up  by  raising 
the  rate.  The  administration  of  the  customs  before  the 
transfer  had  been  very  imperfect.  There  were  many  ex 
emptions,  and  collusions  between  the  officers  and  importers 
resulted  in  great  losses  every  year.  The  principle  of  taxa 
tion  was  to  load  the  necessities  and  put  only  a  light  burden 
on  luxuries.  The  Americans  reversed  this  whole  policy 
and  made  an  effort  to  give  an  honest  administration.  The 
following  figures  show  the  contrast  in  results :  In  1894,  the 
best  year  of  Spanish  domination,  the  customs  yielded  about 
$2,352,000  in  gold.  In  1899  the  Americans  made  the  same 
tariff,  after  important  reductions,  yield  about  $4,400,000. 

The  public  revenue  was  collected  in  the  currency  of  the 
country,  which  was  upon  a  silver  basis.  One  officer  thought 
it  somewhat  inconsistent  for  American  officials  in  what  he 
styled  American  custom-houses  to  refuse  payment  in  Amer 
ican  gold.  The  greatest  hardship  arising  from  this  policy 
appears  to  have  fallen  upon  the  men  of  the  army  who  were 
paid  in  gold,  which,  for  some  time,  they  had  to  exchange 
at  less  than  its  real  value.1  In  legislating  upon  this  sub 
ject  Congress  have  not  yet  seen  fit  to  introduce  the  gold 
standard.  During  the  continuance  of  the  war  the  revenue 
collected  was  sometimes  expended  for  purposes  other  than 
the  support  of  the  so-called  civil  government.  It  was  even 
used  to  help  in  prosecuting  the  war,  one  item  of  expense 
being  for  the  subsistence  of  Spanish  prisoners  of  war.2 

On  the  day  following  the  fall  of  Manila  a  proclamation 
ordered  the  continuance  of  the  municipal  laws  and  their  ad 
ministration  substantially  as  before  the  surrender,  but  "  by 

1  Report  War  Department,  1899,  i>  P*-  4,  161. 

2  Ibid.,  131,  160,  281. 


481]      THE  PHILIPPINES,  PORTO  RICO  AND  SAMOA      297 

officers  appointed  by  the  government  of  occupation."  The 
intention  was  to  suspend  the  courts  until  they  were  reor 
ganized,  but  it  was  not  so  understood  by  all.  Some  of  the 
Spanish  officials  sailed  for  Spain  without  giving  any  notice 
of  their  intention  to  depart,  or  taking  proper  care  of  the 
records  of  their  offices,  some  of  which  could  never  be  found; 
but  in  a  few  instances  the  courts  were  reopened  and  attempts 
were  made  to  settle  cases  in  litigation  at  the  time  of  the 
surrender.  This  action  caused  indignant  protests  from  both 
natives  and  foreigners  and  brought  forth  an  order  to  close 
all  such  courts.  Several  conferences  then  followed  between 
these  officials  and  the  military  governor,  the  result  of  which 
was  that  the  old  officials  were  allowed  to  resume  in  civil 
affairs  only  such  jurisdiction  as  was  conferred  by  the  Span 
ish  laws.  They  were  explicitly  forbidden  to  exercise  crim 
inal  jurisdiction.  This  condition  was  not  satisfactory  to 
the  Spanish  judges  and  their  courts  were  gradually  aban 
doned,  after  which  citizens  had  to  resort  to  the  military 
governor  or  the  provost  courts  for  legal  processes  in  their 
business  or  do  without  them.  But  the  provost  courts  were 
deemed  insufficient,  as  the  inhabitants  needed  processes  of 
a  strictly  civil  nature.  Because  of  this  the  military  gov 
ernor  held  conferences  with  Judge  Arellano,  a  leading  Fili 
pino  lawyer,  late  secretary  of  state  in  Aguinaldo's  cabinet, 
which  resulted  in  the  codification  of  the  Spanish  laws  by 
the  judge  and  the  reorganization  of  the  judiciary.  Fol 
lowing  the  judge's  advice  General  Otis  appointed  both 
natives  and  Americans  (army  officers)  to  the  bench.  As 
our  lines  were  extended  and  order  was  restored  inferior 
courts  were  organized  with  native  officials.  This  was  done 
through  general  orders  issued  by  the  military  governor. 
In  large  cities,  however,  where  there  was  likely  to  be  liti 
gation  between  foreigners  or  Americans  and  Filipinos, 
American  judges  were  usually  appointed  in  order  to  save 


298  MILITARY  GOVERNMENT 

the  necessity  for  a  so-called  United  States  court  to  which 
Americans  and  foreigners  might  resort.1 

Since  the  existing  courts  were  deprived  of  criminal  juris 
diction,  a  tribunal  to  administer  the  criminal  law  had  to  be 
provided  and  it  was  found  in  that  all-powerful  engine  of 
justice  (or  injustice)  invented  during  the  Mexican  War 
and  carried  to  perfection  in  the  Civil  War  and  Reconstruc 
tion  days,  the  military  commission.  Provost  courts  also 
assisted  in  this  branch  of  justice.  The  civil  courts  appear 
to  have  been  allowed  to  resume  a  part  of  their  criminal 
jurisdiction,  but  the  military  commission  was  continued. 
In  defining  its  sphere  of  action  General  Otis  said: 

The  local  courts  shall  not  exercise  jurisdiction  over  any 
crime  or  offense  committed  by  any  person  belonging  to  [or 
connected  with]  the  Army  of  the  United  States,  ...  or  upon 
the  same  by  any  inhabitant  or  temporary  resident  of  this  terri 
tory.  In  such  cases,  except  when  courts-martial  have  cogniz 
ance,  jurisdiction  to  try  and  punish  is  vested  in  military  com 
missions  and  provost  courts For  the  purpose  of  provid 
ing  for  the  prompt  punishment  of  crime  in  cases  where  the 
civil  courts  may  fail,  from  whatever  cause,  the  military  com 
missions  and  provost  courts  will  ....  be  vested  with  juris 
diction  concurrent  with  the  civil  courts  to  hear  and  determine 
all  crimes  and  offenses  committed  by  inhabitants  or  temporary 
residents  within  the  United  States  occupation  ....  In  all 
sentences  imposed  by  military  commissions  and  provost  courts 
the  punishments  awarded  shall  conform,  as  far  as  practicable, 
in  character  and  degree  to  the  laws  of  the  United  States,  or  of 
either  (sic)  of  the  States,  or  to  the  customs  of  war.2 

These  engines  of  justice  do  not  seem  to  have  been  idle. 

1  Report  War  Department,   1899,  i,  pt.  4,   12,  36,  145  et  seq.;  ibid., 
1900,  i,  pt.  10,  pp.  156  et  seq.;  Outlook,  May  31,  1902,  p.  308. 

2  Report  War  Department,  1899,  i,  pt.  4,  p.  58. 


483]      THB  PHILIPPINES,  PORTO  RICO  AND  SAMOA     299 

Some  time  after  the  occupation  of  Manila  two  Spanish 
officials  who  had  been  continued  in  charge  of  the  larger  city 
prisons  were  convicted  of  "  embezzlement  in  violation  of 
the  laws  of  war."  A  Spanish  editor  was  fined  and  im 
prisoned  for  "  publishing  news  and  circulating  seditious 
newspaper  articles  in  violation  of  the  laws  of  war."  The 
provost  courts  disposed  of  a  great  many  cases.  During  the 
second  year  of  the  occupation  an  inferior  provost  court  was 
organized  in  Manila  and  it  alone  tried  5,982  cases.  The 
first  year  larceny  and  theft  were  the  leading  charges;  dur 
ing  the  second,  smuggling,  of  which  there  were  only  four 
cases  the  first  year,  came  to  the  front.1 

The  provost-marshal-general  had  charge  of  many  matters 
not  pertaining  to  the  judiciary.  Indeed,  he  appears  to  have 
been  the  general  head  of  municipal  government,  having  con 
trol  of  no  less  than  sixteen  departments.  One  of  these  was 
that  of  public  instruction,  and  it  is  worthy  of  notice  that 
the  schools  were  reopened  in  about  two  months  after  the 
occupation.  March  30,  1900,  the  department  of  public  in 
struction  for  the  Philippine  Islands  was  created  and  Cap 
tain  Albert  Todd  was  put  in  charge.2 

Under  Executive  orders  from  Washington  a  postal  sys 
tem  was  organized  and  the  Spanish  office  of  patents  and 
copyrights  was  taken  in  charge  and  properly  reorganized. 

Owing  to  the  growing  density  and  floating  character  of 
the  population  of  Manila  it  was  thought  advisable  to  defer 
the  reorganization  of  the  municipal  government  there  on 
civil  lines.  Other  towns,  however,  were  given  local  gov 
ernment  under  military  supervision,  and  the  sphere  of  activ 
ity  for  town  councils  was  defined  by  general  order.8  This 

1  Report  War  Department,  1899,  i,  pt.  4,  52  et  seq.;  ibid.,  1900,  pt 
10,  p.  282. 

2  Ibid.,  220  et  seq.  3  Ibid.,  1899,  pt.  4,  p.  143  et  seq. 


30o  MILITARY  GOVERNMENT  [484 

work  was  continued  by  the  Philippine  Commission  under 
a  reasonably  liberal  policy. 

For  nearly  two  years  a  London  firm  pressed  through 
diplomatic  channels  a  claim  for  damages  growing  out  of 
the  failure  of  the  municipality  of  Manila  to  keep  an  alleged 
contract.  Damages  were  wanted  from  any  source  obtain 
able,  the  municipality,  the  insular  military  government,  or 
the  United  States.  The  matter  was  referred  to  Secretary 
Root,  who  decided  that  the  municipal  officers  installed  by 
the  military  governor  were  as  competent  to  bind  the  munici 
pality  as  their  predecessors,  and  that  if  their  action  in  this 
instance  created  a  liability  which  would  attach  to  the  city 
under  ordinary  conditions,  the  liability  attached  under  the 
extraordinary  conditions  then  existing.  The  municipality, 
however,  denied  the  existence  of  a  contract  and  the  London 
firm,  seeing  no  hope  of  redress  there,  pressed  their  claim 
against  the  United  States  as  ultimately  responsible,  the 
failure  to  keep  the  alleged  contract  being  due  to  an  order 
of  the  military  governor.  The  secretary  then  held  that  the 
claim  was  one  against  the  United  States  for  unliquidated 
damages,  which,  the  claimants  being  foreigners,  he  could 
not  even  transmit  to  Congress,  the  State  Department  be 
ing  the  proper  channel  for  that.1 

May  ii,  1899,  tne  War  Department  issued  a  circular 
(No.  1 6)  directing  collectors  of  customs  in  ports  under 
military  government  to  perform  the  duties  formerly  be 
longing  to  United  States  consuls  or  consular  officers  in  such 
territory,  so  far  as  concerned  seamen,  vessels,  clearances, 
etc.  This  course  was  necessary  for  purposes  of  commerce, 
and  the  action  of  collectors  in  this  capacity  was  acquiesced 
in  by  customs  officers  of  the  United  States  and  of  other 
nations.  The  death  at  Iloilo  of  a  citizen  of  the  United 

1  Magoon,  407  et  seq. 


485]      THE  PHILIPPINES,  PORTO  RICO  AND  SAMOA     301 

States  brought  up  the  question  of  the  powers  of  these  con 
suls  and  of  what  government  they  represented.  The  com 
mandant  of  Iloilo,  in  a  note  addressed  to  the  collector,  said : 
"  You  are  directed,  in  your  capacity  as  United  States  con 
sular  agent,  to  take  charge  of  the  estate  of  the  late  Mor 
timer  Cook  and  dispose  of  the  same  in  accordance  with 
United  States  laws  and  consular  regulations/'  But  when 
the  collector  made  his  report  on  the  estate  to  the  State 
Department,  the  usual  channel  of  consular  communication, 
the  Secretary  referred  the  matter  to  the  War  Department, 
with  the  remark  that  "  as  the  Philippines  have  been  taken 
possession  of  by  the  United  States  and  are  now  under  the 
control  of  the  War  Department,  there  can  be  no  longer 
either  actual  or  acting  consular  officers  in  these  islands  and 
that  no  reports  can  properly  be  made  to  this  Department." 
The  Secretary  of  War  then  acted  as  a  private  person  and 
turned  the  property  over  to  the  heirs  of  the  deceased.1  The 
collectors  continued  to  perform  the  consular  duties  indi 
cated  in  the  order  of  May  n,  but  in  so  doing  they  were 
representatives  of  the  insular  military  government,  and  not 
of  the  United  States. 

Throughout  his  administration,  especially  after  the  be 
ginning  of  hostilities  with  the  insurgents,  General  Otis 
maintained  a  very  rigid  censorship  of  the  press  and  of  press 
dispatches.  This  was,  perhaps,  the  cause  of  the  loudest 
complaint  against  him  in  America. 

In  the  progress  of  hostilities  with  the  insurgents  a  ques 
tion  arose  as  to  the  power  to  punish  for  treason.  The  War 
Department  held  that,  if  it  was  intended  to  punish  for 
offenses  of  a  criminal  character  against  the  Federal  Gov 
ernment  of  the  United  States,  it  was  necessary  for  Con 
gress  to  define  the  crime,  prescribe  the  penalty,  and  confer 

1  Magoon,  487  et  seq.,  510  et  seq. 


302  MILITARY  GOVERNMENT  [486 

the  jurisdiction  to  inflict  such  penalties.  But  that — citing 
the  insurrection  in  New  Mexico  which  was  described  at 
some  length  in  a  preceding  chapter — if  it  was  intended  to 
punish  for  offenses  against  the  military  government  of  the 
Philippines,  the  legislative  branch  of  that  government  might 
provide  the  necessary  legislation.  All  the  departments  of 
the  military  government  being  considered  as  instruments 
of  belligerency,  its  courts  might  be  used  to  condemn  what 
its  cannon  had  captured.1 

In  November,  1901,  the  Philippine  Commission  passed 
an  act  to  define  and  provide  for  the  punishment  of  treason, 
insurrection,  sedition,  etc.  This  act  was  severely  criticized 
by  some,  but  in  reality  it  compares  very  favorably  with 
similar  legislation  in  the  States.2  It  is  questionable,  how 
ever,  whether  the  Philippine  government  as  such  had  a 
right  to  define  and  punish  crimes  against  the  United  States, 
as  was  done  in  this  act. 

Within  a  month  after  the  occupation  of  Manila,  orders 
were  issued  to  apply  there  the  United  States  laws  control- 
ing  Chinese  immigration  into  United  States  territory.  This 
does  not  appear  to  have  been  done  under  strict  military 
necessity,  but  because  it  was  thought  to  be  for  the  general 
good  of  the  country.  The  order  was  subsequently  con 
firmed  by  the  War  Department  and  was  kept  in  force.8 

After  the  ratification  of  the  treaty  American  laws  were 
applied  with  a  freer  hand.  This  was  true  in  particular  in 
the  reorganization  of  the  judiciary,  new,  that  is,  American, 
rules  of  procedure  in  the  courts  and  for  the  practice  of  law 
being  prescribed  by  general  order.4  In  a  letter  of  instruc 
tions,  dated  April  7,  1900,  President  McKinley  directed  the 

1  Magoon,  264  et  seq.  2  Ibid.,  655  et  seq. 

3  Report  War  Department,  1899,  i,  pt  4,  pp.  33  et  seq. 

4  Ibid.,  1900,  pt.  10,  p.  159. 


487]      THE  PHILIPPINES,  PORTO  RICO  AND  SAMOA      303 

Philippine  Commission  to  see  that  the  Filipinos  had  full 
benefit  of  the  bill  of  rights  in  the  United  States  Constitu 
tion.1  Some  of  these  the  Commission  enacted  into  law,  one 
being  the  right  to  the  writ  of  habeas  corpus.  Not  long 
after  this  law  was  passed  General  Chaffee  attempted  to  de 
port  a  civil  employee,  whereupon  recourse  was  had  to  the 
insular  supreme  court,  which  released  the  prisoner  upon  a 
writ  of  habeas  corpus.2  Others  of  the  rights  were  extended 
from  time  to  time  until  now  practically  all  have  been  given.8 

III.  MILITARY  RULE  IN  PORTO  Rico 

The  first  proclamation  of  beneficent  intentions  toward 
the  Porto  Ricans  was  issued  by  General  Nelson  A.  Miles, 
July  28,  1898.  This  was  followed  by  one  the  next  day 
publishing  the  President's  instructions  of  May  19  in  rela 
tion  to  military  government.  October  18  the  military  gov 
ernment  of  Porto  Rico  was  formally  set  up  by  Major- 
General  John  R.  Brooke  at  San  Juan. 

The  story  of  our  occupation  and  government  of  Porto 
Rico  adds  very  little  in  point  of  principle  or  of  practice  to 
what  was  done  in  the  Philippines,  but  a  few  things  deserve 
particular  notice. 

To  aid  the  established  judiciary,  military  commissions 
were  created  (December  8,  1898),  with  powers  similar  to 
those  given  to  like  bodies  in  the  Philippines.  The  special 
object  for  which  they  were  created  was  to  deal  with  ban 
dits,  who  were  very  active  in  the  island.  Several  offenders 
were  adjudged  guilty  by  these  tribunals,  and  were  incar 
cerated  in  the  local  jails.  "  But,"  says  General  Davis,  "  as 
the  military  commission  is  an  instrumentality  for  the  en- 

1  Report  War  Department,  1901,  pt.  10,  p.  8. 

2  Current  History,  xi,  596. 

3  Act  of  Congress,  July  i,  1902. 


304  MILITARY  GOVERNMENT 

forcement  of  the  laws  of  war,  the  use  of  that  means  of 
administering  justice  ceased  on  April  n,  1899,  the  date  of 
the  proclamation  of  the  President  announcing  the  termina 
tion  of  hostilities  with  Spain."  * 

Early  in  1899,  when  it  appeared  certain  that  peace  would 
be  definitively  proclaimed,  the  American  officials  in  Porto 
Rico  began  to  look  about  for  something  to  take  the  place 
of  military  commissions.  Major  A.  C.  Sharpe,  acting 
judge  advocate  of  the  department  of  Porto  Rico,  recom 
mended  that  the  President  be  requested  to  proclaim  mar 
tial  law  wherever  he  should  deem  it  necessary,  in  order 
that  the  military  tribunals  might  continue  to  sit.  The 
judge  advocate  general,  however,  thought  this  course  one 
of  doubtful  legality,  but  intimated  that  the  President  had 
the  power  to  establish  a  provisional  court  with  competent 
jurisdiction,  and  cited  Lincoln's  provisional  court  in  Louis 
iana  as  a  precedait.  In  spite  of  the  fact  that  this  sugges 
tion  was  approved  by  the  President,  General  Henry,  suc 
cessor  to  General  Brooke,  forwarded  a  project  for  such  a 
court  to  the  Secretary  of  War  with  his  disapproval.  His 
successor,  General  Davis,  however,  approved  the  project, 
and  the  court  was  established  by  general  order,  June  27, 
1899,  and  was  duly  installed  with  considerable  eclat  July  i. 

This  court  was  designed  to  meet  exigencies  arising  in 
cases  not  properly  cognizable  in  the  local  courts,  such  as 
violations  of  revenue  laws  and  of  statutes  of  the  United 
States,  and  controversies  between  citizens  of  different 
States  and  between  citizens  of  foreign  nations.  It  was 
styled  a  United  States  provisional  court,  and  the  judges 
were  clothed  with  the  powers  vested  in  the  judges  of  the 
circuit  or  district  courts  of  the  United  States.  "  The  court 
shall,"  said  the  order  establishing  it,  "  as  far  as  practicable, 

1  Report  War  Department,  1899,  i,  pt.  6,  pp.  504,  569. 


489]      THE  PHILIPPINES,  PORTO  RICO  AND  SAMOA      305 

conform  to  the  precedents  and  decisions  of  the  United 
States  courts  in  similar  cases  which  have  been  tried  and 
determined  in  territories  formerly  acquired  from  Spain  or 
Mexico."  The  employment  of  juries  was  left  to  the  dis 
cretion  of  the  court.  If  any  litigant  was  dissatisfied  with 
a  decision,  a  stay  of  execution  would  be  granted  for  ninety 
days  to  allow  an  appeal  to  the  United  States  Supreme 
Court.  If  the  appeal  failed  or  was  not  prosecuted,  exe 
cution  would  then  issue.  The  department  commander  might 
exercise  the  power  of  pardon  or  commutation  in  criminal 
cases.  All  fees,  fines,  and  costs  were  to  be  turned  over  to 
the  treasurer  of  the  island. 

During  the  ten  months  of  its  existence,  which  ceased 
with  the  installation  of  the  civil  government  under  Mr. 
Allen,  this  court  transacted  a  large  amount  O'f  business  and 
is  reported  to  have  exerted  a  beneficial  influence  throughout 
the  island.  Equity,  common  law,  and  criminal  cases  were 
all  brought  within  its  jurisdiction.  The  death  penalty  was 
imposed  in  one  case,  but  the  military  governor  commuted 
this  to  life  imprisonment.  The  total  expense  of  the  court 
was  $20,455.08;  the  receipts  from  its  fines  and  fees 
amounted  to  $6,320.49.  There  was  also  the  sum  of  $10,- 
ooo  collectable  as  forfeited  bail.  The  sum  of  $1,215  was 
turned  over  to  the  Treasurer  of  the  United  States  as  the 
proceeds,  less  expenses,  of  $3,144,  Mexican,  captured  by 
the  troops  at  Mayaguez  when  that  city  was  occupied.  It 
was  adjudged  by  the  court  to  be  good  prize  of  war.1  No 
comment  is  needed  upon  this  decision  beyond  recalling  to 
the  reader  the  cases  of  Jecker  vs.  Montgomery  and  "  The 
Grapeshot."  2 

Soon  after  the  provisional  court  was  instituted  a  conflict 

1  Report  War  Department,  1900,  i,  pt.  13,  pp.  76  et  seq. 

2  Supra,  pp.  207  et  seq. 


306  MILITARY  GOVERNMENT 

arose  between  it  and  one  of  the  local  courts,  as  both  claimed 
jurisdiction  over  Spanish  subjects  in  cases  provided  for  in 
Article  XI  of  the  treaty.  The  local  court  appeared  in  a 
body  before  the  commanding  general  to  protest  against  the 
interference  of  the  provisional  court,  though  the  defend 
ants,  who  were  charged  with  counterfeiting  Porto  Rican 
coins,  preferred  to  be  tried  in  the  latter.  The  matter  was  then 
referred  to  Washington,  and  both  courts  were  requested  to 
suspend  proceedings  in  the  case  pending  a  reply.1  The 
writer  made  several  efforts  to  find  out  definitely  the  grounds 
of  the  protest  by  the  insular  court,  but  without  success.  The 
War  Department  decided  that  the  offence  of  counterfeiting 
Porto  Rican  coins  did  not  lie  within  the  jurisdiction  of  the 
provisional  court,  though  the  order  establishing  the  court 
had  sought  to  give  it  exclusive  jurisdiction  in  such  matters. 
General  Davis  then  amended  the  original  order  according  to 
these  instructions.2  The  defendants  were  subsequently  tried 
in  the  insular  court.8  At  the  same  time  General  Davis  in 
terpreted  the  treaty  as  not  intending  to  give  Spanish  sub 
jects  any  special  privileges,  but  as  leaving  them  subject  to 
the  jurisdiction  of  the  provisional  court  the  same  as  other 
residents  of  the  island.2 

In  one  case  a  litigant  attempted  to  take  advantage  of  the 
provision  allowing  appeals  from  the  provisional  court  to  the 
United  States  Supreme  Court,  but  an  application  for  leave 
to  file  a  petition  for  a  writ  of  ceriiorari  was  denied  on  the 
ground  that  the  court  was  a  military  tribunal,  and -not  a 
court  with  jurisdiction  in  law  or  equity,  within  the  mean 
ing  of  those  terms  as  used  in  the  United  States.4  Never- 

1  Report,  ibid.,  1899,  i,  pt.  6,  pp.  594,  688  et  seq. 

2  General    Orders,    No.    47,    Department  of   Porto   Rico,    San   Juan, 
March  6,  1900. 

3  Letter  from  Judge  N.  B.  K.  Pettingill,  of  the  provisional  court. 
*  In  re  Vidal,  179  U.  S.,  126. 


49 1  ]      THE  PHILIPPINES,  PORTO  RICO  AND  SAMOA      307 

theless,  the  existence  of  the  tribunal  was  afterwards  recog 
nized  by  Congress,  which  provided,  in  the  act  creating  the 
civil  government  of  Porto  Rico,  that  the  United  States  dis 
trict  court  established  by  that  act  should  take  charge  of  its 
records  and  assume  jurisdiction  of  all  cases  pending  therein. 

Three  distinct  periods  are  to  be  noted  in  the  military 
government  of  Porto  Rico.  The  first  extends  from  the 
landing  of  troops  under  General  Miles  to  the  cessation  of 
hostilities  on  August  14,  following  the  peace  protocol  of 
August  12;  the  second  extends  from  August  14,  1898,  to 
the  proclamation  of  peace,  April  n,  1899;  the  third  ended 
with  the  installation  of  the  civil  government,  May  i,  1900. 
During  the  first  period  Porto  Rico  was  a  territory  of  Spain 
occupied  in  part  by  the  troops  of  the  United  States.  Dur 
ing  the  second  period  the  sovereignty  of  the  island  was 
still  nominally  in  the  crown  of  Spain,  though  the  peace 
protocol  contained  a  promise  of  its  ultimate  cession.  Dur 
ing  the  third  period  the  island  was  a  territory  belonging 
to  the  United  States,  for  the  government  of  which  Congress 
had  made  no  provision. 

Soon  after  the  occupation  changes  began  to  be  made  in 
the  political  and  judicial  system  of  government,  some  of 
which  were  not  dictated  by  military  necessity.  The  gov 
ernment  was  administered  as  though  the  island  were  a  per 
manent  possession  of  the  United  States,  even  before  the 
treaty  of  peace  had  been  signed,  much  less  ratified.  Indeed, 
one  could  hardly  tell  from  reading  the  civil  dispatches  of 
the  military  governor  whether  there  ever  was  a  treaty.  The 
natural  inference  from'  this  would  be  that  the  sovereignty 
of  the  United  States  was  regarded  as  attaching  to  the 
island  with  the  occupation  of  San  Juan,  October  18,  1898, 
or  possibly  with  the  signing  of  the  peace  protocol,  August 
12.  Such  a  position  would  be  untenable  in  international 
law,  and  still  more  so  according  to  our  own  law,  which 


MILITARY  GOVERNMENT  [492 

does  not  legitimize  the  acquisition  of  territory  by  conquest 
without  the  sanction  of  the  treaty-  or  law-making  power. 
The  explanation,  however,  of  the  policy  pursued  during  the 
second  period  probably  is  to  be  found  in  the  fact  that,  as 
the  protocol  of  August  12,  besides  pledging  Spain  to  cede 
Porto  Rico,  required  her  to  evacuate  it  immediately,  it  was 
thought  to  be  hardly  worth  while  to  delay  the  American 
ization  of  the  island  by  standing  upon  the  formalities 
of  law. 

A  more  important  problem  presented  itself  in  the  third 
period.  Some  writers  hold  that  after  the  conclusion  of 
peace  the  military  occupant  has  no  power  to  legislate  for 
the  territory,  but  can  only  administer  the  existing  laws. 
As  many  of  the  municipal  laws  of  Porto  Rico  were  in  con 
flict  with  the  political  character,  institutions,  and  Consti 
tution  of  the  new  sovereignty,  it  was  no  small  task  to  de 
cide  what  laws  must  be  superseded  by  the  existing  laws  of 
the  United  States  upon  the  same  subject.  Even  here  the 
military  governor  may  be  embarrassed  by  finding  that  cer 
tain  regulations  are  in  conflict  with  our  Constitution,  but 
that  the  national  government  has  no  legislation  upon  the 
subject.  He  is  then  left  to  choose  among  the  laws  of  forty- 
five  states  and  a  still  greater  number  of  municipalities.  The 
first  change  in  local  law  by  military  order  was  made  Octo 
ber  27,  1898.  Among  other  things  this  order  contained  a 
paragraph  abolishing  the  stamp  tax  and  another  abolishing 
an  administrative  court.1  As  the  laws  imposing  the  tax 
and  establishing  the  court  can  hardly  be  said  to  have  been 
in  conflict  with  any  provision  of  our  own  Constitution  or 
laws,  the  order  was  unwarranted,  if  the  military  governor 
has  no  constructive  legislative  power.  The  provisional 
court  already  mentioned  may  be  cited  as  another  example 

1  Report  War  Department,  1900,  i,  pt.  13,  p.  47. 


493]      THE  PHILIPpINES,  PORTO  RICO  AND  SAMOA      309 

of  legislative  work.  Many  other  changes  of  importance 
were  made,  the  details  of  which  need  not  be  given  here. 

These  facts  are  not  mentioned  as  revealing  any  great 
turpitude  in  the  military  governors  in  going  beyond  the 
powers  defined  in  certain  laws.  Rather  they  reveal  the 
constructive  ability  of  the  American.  While  a  great  stick 
ler  for  law,  he  is  not  shackled  by  the  absence  of  law,  nor 
always  by  an  observance  of  its  technicalities.  It  seems  to 
have  been  the  object  of  the  military  governors  in  Porto 
Rico  to  begin  to  adopt  the  system  of  local  laws  and  ad 
ministration  which  Congress  might  reasonably  be  expected 
to  provide  for  the  island.  To  their  credit  be  it  said  that, 
with  two  slight  exceptions,  their  military  orders  were  con 
firmed  by  Congress  and  declared  to  be  a  part  of  the  law 
of  the  land.1 

The  military  governor  in  Porto  Rico  had  control  over 
all  civil  matters  except  the  postal,  quarantine,  and  marine 
hospital  services.  The  first  was  administered  by  men  ap 
pointed  for  that  specific  purpose  by  the  President,  but  that 
fact  does  not  remove  it  from  the  realm  of  military  govern 
ment.  The  prerogative  for  this,  as  well  as  for  every  other 
branch  of  the  insular  governments,  had  its  origin  in  the 
war  power.  It  is  a  notable  fact  that  the  greatest  scandals 
of  the  military  regime  arose  in  connection  with  the  postal 
department  in  Cuba,  which  was  administered  by  civilians  in 
stead  of  army  officers.2 

As  in  previous  cases,  Congress  desired  to  know  what  the 
army  officers  were  getting  for  administering  civil  affairs. 
Their  inquiry  revealed  the  fact  that  several  in  Cuba  were 
receiving  extra  pay,  the  military  governor  $7,500  and  three 
or  four  subordinates  smaller  sums,  all  from  the  insular 
revenues.  These  payments  were  authorized  by  the  Presi- 

1  Report  War  Department,  1900,  i,  pt.  13,  p.  45-  2  Ibid.,  27. 


310  MILITARY  GOVERNMENT  [494 

dent  upon  the  oral  advice  of  the  Attorney-General  that  they 
were  lawful.1  In  Porto  Rico  only  one  officer  received  any 
extra  salary  or  allowance.  This  exception  was  in  the  case 
of  an  assistant  surgeon,  a  civilian  under  contract  with  the 
army,  who  was  detailed  as  a  member  of  the  board  of  edu 
cation  and  of  the  board  of  health.  As  he  had  had  consid 
erable  experience  in  educational  matters  the  military  gov 
ernor  felt  that  his  services  were  worth  the  extra  pay  ($100 
a  month),  without  which  they  could  not  have  been  secured. 
He  was  paid  from  the  insular  funds.  The  military  gov 
ernors  also  "  found  it  necessary  to  make  some  minor  ex 
penditures  for  meeting  expenses  of  reception  of  officials," 
amounting  in  all  to  $475. 36. 2 

April  12,  1900,  the  Porto  Rican  Civil  Government  Bill 
became  a  law,  to  take  effect  May  i,  1900.  The  officers  of 
this  government  were  to  be  appointed  by  the  President  and 
confirmed  by  the  Senate,  but  on  April  30  only  two  or  three 
had  qualified.  As  officers  of  the  army  on  the  active  list 
were  forbidden  to  hold  civil  office  under  penalty  of  loss  of 
commission,  it  was  necessary  to  make  some  provision  for 
carrying  on  the  government.  The  military  governor  was 
equal  to  the  emergency  and  exercised  his  powers  of  legis 
lation  and  appointment  on  April  30  by  reorganizing  his 
military  government  so  as  to  create  the  departments  re 
quired  in  the  act  of  Congress  and  by  appointing  civilians 
as  heads  of  these  departments.  Six  gentlemen  thus  ap 
pointed  took  the  oath  of  office  on  April  30,  and  held  over 
until  their  successors  were  duly  installed.  Governor  Charles 
H.  Allen  was  inaugurated  on  May  i,  and  the  military  gov 
ernor  published  his  last  order  that  day  announcing  the 
transfer  of  the  government  to  the  civil  authorities.3 

1  H.  Doc.,  56  Cong,  i  Sess.,  no.  696,  p.  16.  2  Ibid.,  22. 

3  Report  War  Department,  ibid.,  56  et  seq. 


495 ]      THE  PHILIPPINES,  PORTO  RICO  AND  SAMOA      3II 

The  Administration  has  been  vigorously  attacked  in 
America,  both  as  to  its  policy  of  expansion  and  the  method 
of  carrying  it  out.  Charges  of  mismanagement  at  home 
and  of  corruption  and  misgovernment  in  the  islands  have 
been  freely  and  persistently  made.  Investigations  have  re 
vealed  some  things  not  to  be  commended,  but  have  accom 
plished  little  beyond  revealing,  and  probably  checking  them. 
Some  things  have  gone  wrong  in  Porto  Rico,  but  the  loud 
est  and  most  persistent  complaints  have  been  leveled  against 
the  government  of  the  Philippines,  especially  the  military 
administration  under  the  direct  supervision  of  the  com 
manding  general.  The  work  of  Governor  Taft  and  the 
Philippine  Commission  has  met  with  general  commenda 
tion  in  most  particulars,  though  the  granting  of  such  powers 
as  were  exercised  by  the  Commission  threw  into  hysterics 
some  who  were  very  loud  in  proclaiming  their  devotion  to 
the  Constitution.  But,  as  stated  in  the  Preface,  and  for 
reasons  there  given,  no  special  attention  will  be  given  here 
to  an  inquiry  as  to  the  character  and  accomplishments  of 
the  military  governments  in  our  recent  acquisitions. 

IV.  THE  OCCUPATION  AND  GOVERNMENT  OF  TUTUILA, 

SAMOA 

The  first  negotiations  for  a  naval  station  at  Pago  Pago, 
island  of  Tutuila,  Samoan  group,  date  back  to  1872.  The 
right  to  one  was  acquired  by  treaty  in  1878.  The  various 
troubles,  local  and  international,  which  led  to  the  partition 
of  the  islands  do  not  concern  us  here.  Suffice  it  to  say 
that  the  partition  was  accomplished  by  a  convention  signed 
at  Washington,  December  2,  1899,  by  the  representatives 
of  Great  Britain,  Germany,  and  the  United  States.  By  this 
convention  Great  Britain  renounced  all  her  rights  and  claims 
in  the  Samoan  group,  while  Germany  renounced,  in  favor 


312  MILITARY  GOVERNMENT  [496 

of  the  United  States,  all  her  rights  and  claims  in  Tutuila 
and  other  islands  east  of  longitude  171,  west  of  Greenwich. 

Tutuila,  the  largest  of  the  islands  thus  brought  under  the 
dominion  of  the  United  States,  has  an  area  of  only  fifty- 
four  square  miles,  but  the  harbor  of  Pago  Pago  is  consid 
ered  one  of  the  most  valuable  island  harbors  in  the  South 
Pacific.1  About  four  thousand  natives  reside  on  Tutuila, 
and  about  one  thousand  five  hundred  on  the  Manua  group, 
some  seventy  miles  to  the  east.  They  are  a  branch  of  the 
Malay  race  and  are  in  a  very  primitive  stage  of  develop 
ment,  though  said  to  be  of  a  tractable  disposition. 

February  17,  1900,  an  order  was  forwarded  through  the 
Navy  Department  to  Commander  B.  F.  Tilley  to  take  pos 
session  of  the  islands  in  question  and  to  act  as  their  gov 
ernor.  Pursuant  to  this  order  Captain  Tilley  hoisted  the 
stars  and  stripes  at  Pago  Pago,  April  17,  and  published  a 
proclamation  of  the  President,  dated  February  16,  1900, 
which  announced  that  the  United  States  had  assumed  the 
sovereignty  and  protection  of  the  islands  and  that  they 
were  assigned  to  the  Navy  Department  for  a  coaling  sta 
tion.2  According  to  the  captain's  account  the  natives  gladly 
swore  allegiance  to  the  United  States.3 

As  for  government,  Captain  Tilley  received  no  instruc 
tions  beyond  the  statement  that  "  a  simple,  straightforward 
method  of  administration,  such  as  to  win  and  hold  the  con 
fidence  of  the  people,"  4  was  expected  of  him.  The  lack 
of  a  central  administration  was  thought  to  be  the  chief 
cause  of  the  constant  tribal  wars,  and  the  captain,  as  supreme 
legislator  and  executive,  first  undertook  to  remedy  this  de- 

1  Current  History,  ix,  829  et  seq. 

2  Report  Secretary  of  Navy,  1900,  pp.  99  et  seq. 
8  Ibid.,  1901,  p.  85. 

4  Independent,  Nov.  27,  1902,  p.  2811. 


497]      THE  PHILIPPINES,  PORTO  RICO  AND  SAMOA 

feet.  Evidently  he  did  not  consider  the  Second  Amend 
ment  to  the  Constitution  in  force  in  Tutuila,  for  he  at  once 
proceeded  to  disarm  the  natives.  The  ease  with  which 
they  were  persuaded  to  give  up  their  arms,  even  without 
compensation,  was  cited  as  a  proof  of  their  child-like  sim 
plicity.1  Subsequently  these  arms  were  paid  for  out  of  the 
emergency  fund,  by  order  of  the  President.  For  the  pur 
pose  of  instituting  a  systematic  government  the  country 
was  divided  into  counties  and  districts  and  these  were  put 
in  charge  of  native  officials,  who  were  selected  by  the  gov 
ernor  and  elected  by  the  people.  The  greatest  trouble  was 
in  deciding  between  rival  claimants  among  the  chiefs.  A 
general  council  was  then  held  and  some  reforms  were  in 
stituted,  the  natives  readily  following  the  suggestions  of 
the  commandant.  The  reforms  were  mainly  social  and 
economic,  touching  the  questions  of  marriage  and  divorce 
and  certain  customs  not  conducive  to  economic  develop 
ment.  In  the  course  of  the  year  1901  serious  charges  of 
drunkenness  and  immorality  were  preferred  against  the 
commandant,  but  they  do  not  appear  to  have  been  sus 
tained.2  The  Secretary  of  the  Navy  then  forbade  the  sale 
of  "  wines  or  other  refreshments  at  the  hotels."  The  com 
mandant  spoke  approvingly  of  this  order,  but  said  it  was 
of  little  use,  since  the  natives  were  not  addicted  to  liquor. 
The  American  consul  at  Apia,  however,  begged  to  have  it 
rescinded  on  the  ground  that  business  had  fallen  off  to 
such  an  extent  as  to  cause  the  closing  of  the  hotels.3  Cap 
tain  Tilley  submitted  his  regulations  to  the  Navy  Depart 
ment  for  approval,  but  at  the  end  of  two  years  no  formal 
action  had  been  taken  upon  them.4 

1  Independent,  July  11,  1901,  p.  1602.  2  Current  History,  xi,  596. 

3  Ibid.,  xii,  538. 

*  Independent,  Nov.  27,  1902,  p.  2812. 


314  MILITARY  GOVERNMENT  [498 

The  plan  and  policy  instituted  by  Captain  Tilley  were 
followed  by  his  successors  in  office,  who  had  for  his  ad 
ministration  only  words  of  praise.  The  first  year  the 
native  officials  received  no  salary,  but  each  was  allowed  a 
cotton  duck  uniform.  The  next  year  salaries  were  prom 
ised  and  a  tax  was  levied  to  meet  these  and  other  expenses. 
The  collection  of  this  tax,  which  was  paid  in  copra,  the 
chief  product  of  the  island,  caused  no  little  trouble  to  the 
commandant.  Although  the  tax  was  recommended  by  the 
chiefs,  they  sometimes  advised  resistance  to  its  collection, 
usually  because  of  a  grudge  for  some  imagined  wrong.  It 
was  also  found  that  native  judges  were  not  always  to  be 
depended  upon  when  it  came  to  abolishing  old  customs, 
which,  although  they  were  deemed  pernicious  by  the  com 
mandant,  were  dear  to  the  people.  Owing  to  this  fact  it 
became  necessary  to  associate  white  judges  with  the  natives. 
In  one  case  where  a  native  judge  proved  obdurate,  he  was 
sentenced  to  fine  and  dismissal.  We  have  seen  that  Cap 
tain  Tilley  disregarded  the  Constitution  in  disarming  the 
people,  but  his  successor,  Captain  Sebree,  appealed  to  that 
document  to  justify  the  abolition  of  an  old  custom  which 
compelled  a  man  who  belonged  to  the  London  Mission 
Society's  church  and  changed  to  any  other  to  leave  his 
village  immediately.1 

V.  THE  PANAMA  CANAL  ZONE 

By  the  Clayton-Bui wer  treaty  of  1850  the  United  States 
and  Great  Britain  agreed  that  neither  party  should  ever 
secure  or  maintain  any  exclusive  control  over  the  inter- 
oceanic  canal,  the  construction  of  which  was  then  in  con 
templation  by  way  of  Nicaragua.  To  this  end  they  en 
gaged  to  extend  to  the  canal  their  joint  protection,  and  also 

1  Independent,  Nov.  27,  1902,  p.  2821. 


499]      THE  PHILIPPINES,  PORTO  RICO  AND  SAMOA 

to  extend  the  same  principle  to  any  interoceanic  communi 
cations  by  way  of  Tehuantepec  or  Panama.  Chiefly  as 
the  result  of  the  colossal  failure  of  the  French  Panama 
Canal  Company,  the  attention  of  the  United  States  was  for 
many  years  confined  to  the  Nicaragua  route;  but,  in  1899, 
the  President  was  authorized  to  appoint  a  new  commission 
to  investigate  this  route  and  all  others  deemed  worthy  of 
study.  The  report  of  this  commission  favored  digging  the 
canal  at  Panama.  Meanwhile,  the  American  people  had 
become  very  restive  under  the  restrictions  of  the  Clayton- 
Bui  wer  treaty,  and  in  1901  a  new  treaty  was  signed  at 
Washington  by  Mr.  Hay  and  Lord  Pauncefote,  by  which 
the  United  States  were  left  untrammeled. 

This  treaty  was  followed  up  by  an  act  of  Congress, 
known  as  the  Spooner  Act,  of  June  28,  1902,  which  author 
ized  the  President  to  acquire  for  the  United  States  the 
rights  and  property  of  the  New  Panama  Canal  Company, 
of  France,  and  to  secure  from  Colombia  "  perpetual  con 
trol  of  a  strip  of  land,  .  .  .  not  less  than  six  miles  in 
width  "  from  sea  to  sea,  together  with  the  right  perpetually 
to  maintain  and  operate  the  Panama  Railroad.  In  case  of 
failure  to  secure  this  concession  from  Colombia  "  within  a 
reasonable  time,"  he  was  directed  to  seek  similar  terms 
from  Nicaragua  for  a  canal  through  her  territory. 

A  treaty  was  then  concluded  with  the  Colombian  gov 
ernment,  was  duly  ratified  by  the  United  States  Senate, 
but  was  rejected  by  the  Colombian  congress.  President 
Roosevelt  made  no  overtures  to  Nicaragua,  though  there 
was  no  prospect  of  a  change  of  temper  on  the  part  of 
Colombia.  Possibly  this  delay  was  due  to  the  fact  that 
he  knew  that  a  revolution  was  brewing  in  Panama,  and 
wished  to  see  what  the  result  would  be. 

The  revolution  came  to  a  head  November  3,  1903,  and 
the  Republic  of  Panama  proclaimed  its  independence  on 


316  MILITARY  GOVERNMENT  [500 

that  day.  In  accordance  with  instructions  previously  re 
ceived  from  Washington,  Commander  Hubbard,  of  the 
gunboat  "  Nashville,"  landed  fifty  marines  and  gave  the 
Colombian  commander  to  understand  that  the  United 
States  would  not  allow  fighting  which  would  endanger  the 
freedom  of  transit.  The  Colombian  troops  then  withdrew 
and  no  serious  effort  was  ever  made  to>  subdue  the  coun 
try,  owing  to  the  fact  that  the  United  States  would  not 
allow  the  landing  of  troops.  November  13  our  govern 
ment  recognized  the  de  facto  government  of  Panama  by 
receiving  its  minister,  M.  Bunau-Varilla. 

The  conduct  of  the  United  States  government  was  de 
fended  on  the  ground  of  the  treaty  of  1846  with  New 
Granada,  described  by  Secretary  Hay  as  "  a  covenant  which 
runs  with  the  land/'  and  of  "  the  interests  of  collective 
civilization."  It  was  held  that  we  had  guaranteed  the 
sovereignty  of  Colombia  against  a  foreign  power,  but  not 
against  her  own  citizens.  The  government  at  Bogota  can 
hardly  have  dreamed  in  1846  that  it  was  ceding  away  the 
right  to  put  down  rebellions  anywhere  within  its  borders, 
but  it  could  do  nothing  but  confess  itself  helpless  before  a 
much  more  powerful  nation  and  appeal  to  diplomacy.  All 
diplomatic  remonstrances  proving  futile,  recourse  was  fin 
ally  had  to  the  courts  of  France  in  the  hope  of  restraining 
the  Canal  Company  from  disposing  of  its  property,  but 
with  no  better  success.  The  recognition  of  the  independ 
ence  of  Panama  by  the  United  States  was  soon  followed 
by  similar  action  on  the  part  of  the  leading  European  and 
by  some  of  the  Spanish-American  states. 

On  November  18,  1903,  Mr.  Hay  concluded  with  M. 
Bunau-Varilla  a  treaty  between  the  United  States  and  the 
Republic  of  Panama,  ostensibly  in  pursuance  of  the  pro 
visions  of  the  Spooner  Act,  which  President  Roosevelt  con 
strued  to  authorize  him  to  treat  with  the  power  in  control 


501  ]     THE  PHILIPPINES,  PORTO  RICO  AND  SAMOA 

of  the  Isthmus,  By  this  treaty  the  United  States  guarantee 
the  independence  of  Panama.  In  return  they  secure  in 
perpetuity  a  canal  zone  ten  miles  wide.  Within  the  limits 
of  this  zone  we  also  have  "  all  the  rights,  power  and 
authority  .  .  .  which  the  United  States  would  possess  and 
exercise  if  it  were  the  sovereign  of  the  territory  within 
which  said  lands  and  waters  are  located,  to  the  entire  ex 
clusion  of  the  exercise  by  the  Republic  of  Panama  of  any 
such  sovereign  rights,  power  and  authority."  From  this 
grant  the  cities  of  Colon  and  Panama  are  excepted,  but 
the  United  States  have  the  right  to  acquire  and  control 
property  in  them.  A  monopoly  is  granted  in  perpetuity 
for  the  construction  and  operation  of  railways  or  canals 
across  the  territory  of  the  Republic.  The  canal  is  to  be 
neutral,  but  we  are  empowered  to  use  armed  forces  and 
to  erect  fortifications  for  its  protection.  In  return  for  these 
concessions  Panama  is  to*  receive  at  once  the  sum  O'f  $10,- 
000,000,  and  $250,000  per  annum  at  the  expiration  of 
nine  years. 

This  treaty  was  duly  ratified  by  both  governments,  and 
the  ratifications  were  exchanged  February  26,  1904.  Or 
ders  were  at  once  given  that  troops  should  be  sent  to  the 
Isthmus  to  relieve  the  marines  on  duty  there.  President 
Roosevelt  then  proceeded  to  appoint  the  Canal  Commis 
sion  as  provided  for  in  the  Spooner  Act,  which  required 
that  four  of  the  seven  members  should  be  men  skilled  in 
the  science  of  engineering,  and  that  one  of  the  four  should 
be  from  the  army  and  one  from  the  navy.  In  the  latter 
part  of  March  the  President  called  the  Commission  together 
and  gave  them  elaborate  instructions  previous  to  their  de 
parture  for  Panama.  May  9  he  held  a  conference  with 
the  Secretaries  of  State  and  War  and  with  the  Attorney- 
General,  after  which  he  directed  the  Commission  to  report 
to  the  War  Department.  General  George  W.  Davis,  the 


MILITARY  GOVERNMENT  [502 

army  member  of  the  Commission,  was  appointed  governor 
of  the  American  zone  of  the  Isthmus,  and  was  empowered 
to  appoint  one  judge  who  should  exercise  judicial  author 
ity.  Legislative  powers  have  by  statute  been  delegated  to 
the  Commission  until  the  expiration  of  the  Fifty-eighth 
Congress,  provided  that  the  laws  be  made  and  executed  in 
accordance  with  the  principle  of  the  bill  of  rights. 

VI.  THE  INSTRUMENT  OF  GOVERNMENT 

The  instruments  of  government,  both  in  Washington  and 
in  the  islands,  during  the  war  with  Spain  have  been  men 
tioned  incidentally  in  the  course  of  the  narrative,  but  it 
may  be  well  to  bring  them  into  one  view. 

First  of  all  we  have  the  President  of  the  United  States, 
in  whom  all  power  and  responsibility  centered.  His  orders 
were  directed  to  such  departments  as  were  most  intimately 
concerned,  but  practically  all  of  them  issued  from  the  War 
Department.  To  assist  in  handling  the  ever-increasing 
business,  especially  to  deal  with  legal  questions  as  they 
arose,  the  Bureau  of  Insular  Affairs,  War  Department, 
was  created  and  the  Hon.  Charles  E.  Magoon  was  ap 
pointed  its  law  officer. 

In  the  islands  the  commanding  general  was  military  gov 
ernor,  and  was  clothed  with  executive,  judicial,  and  legis 
lative  powers.  In  most  cases  army  officers  at  first  usually 
performed  all  the  civil  duties,  except  such  as  were  of  a 
purely  local  character,  and  often  these  also;  but  sometimes 
civilians  were  employed.  As  the  army  officers  received  no 
extra  pay  for  such  work  the  expenses  of  the  civil  admin 
istration  were  comparatively  low.  But  as  the  provinces 
became  more  and  more  pacified,  a  larger  use  was  made  of 
civilians. 

The  first  Philippine  Commission,  as  already  noted,  was 
appointed  in  January,  1899.  Though  this  was  done  under 


503]     THE  PHILIPPINES,  PORTO  RICO  AND  SAMOA 

what  is  commonly  known  as  the  "  war  power,"  the  Com 
mission  was  directed  to  report  through  the  Department  of 
State.  The  work  of  this  Commission  was  interfered  with 
by  the  insurrection,  but  it  made  an  elaborate  report  to  the 
President  in  1900.  Subsequent  reports,  however,  were 
made  to  the  War  Department.  In  the  spring*  of  1900  the 
work  of  pacification  had  proceeded  far  enough  to  enable 
the  Commission  to  enter  upon  administrative  work,  and  it 
was  ordered  to  return  to  the  Philippines  "  to  continue  and 
perfect  the  work  of  organizing  and  establishing  civil  gov 
ernment  already  commenced  by  the  military  authorities."  * 
The  work  of  organizing  local  governments  in  the  pacified 
districts  was  now  confided  to  it.  September  i,  1900,  it 
was  entrusted  with  legislative  power,  in  consequence  of 
which  we  now  have  a  large  volume  of  laws,  preceding  each 
of  which  is  the  unusual  expression,  By  authority  of  the 
President  of  the  United  States,  be  it  enacted  by  the  United 
States  Philippine  Commission.  Certain  executive  powers 
were  also  given  to  the  Commission,  such  as  that  of  ap 
pointing  officers  in  various  departments,  but  the  command 
ing  general  continued  to  be  the  chief  executive,  subject  to 
the  laws  enacted  by  the  Commission,  until  July  4,  1901. 

So  far  the  President  had  acted  untrammeled,  or  unaided, 
by  any  word  from  Congress.  May  i,  1900,  he  was  re 
lieved  of  the  government  of  Porto  Rico  by  the  organiza 
tion  of  civil  government  under  act  of  Congress.  March 
2,  1901,  by  the  Spooner  Amendment,  Congress  ratified  what 
had  already  been  done  in  the  Philippines,  and  ordered  that, 
until  Congress  should  otherwise  direct,  the  power  to  govern 
them  should  be  vested  in  such  persons  and  exercised  in 
such  manner  as  the  President  might  appoint  and  direct. 

July  4,    1901,  the  military  yielded  to  civilians   in  the 

1  Magoon,  229. 


320  MILITARY  GOVERNMENT  [504 

pacified  districts  of  the  Philippines,  and  the  Hon.  Wm.  H. 
Taft,  president  of  the  Commission,  was  inaugurated  first 
civil  governor.  One  year  later  civil  government  was  pro 
claimed  for  the  whole  Archipelago,  in  conformity  with  an 
act  of  Congress  of  July  i,  1902,  which  left  its  inaugura 
tion  to  the  discretion  of  the  President. 

If  the  source  of  the  power  of  the  President  to  govern  be 
sought,  it  is  to  be  found,  as  has  frequently  been  pointed 
out,  in  his  war  powers  during  hostilities.  Before  the  ex 
change  of  ratifications  of  the  treaty  with  Spain,  hostilities 
were  opened  by  the  insurgents  and  a  domestic  war  took 
the  place  of  a  foreign  one.  When  the  latter  war  ended,  was 
left  for  the  Executive  to  say.  In  Porto  Rico  and  the  paci 
fied  districts  of  the  Philippines  he  continued  to  govern  after 
the  close  of  hostilities,  "  from  the  necessities  of  the  case,"  l 
until  Congress  acted.  The  English  Parliament  has  grad 
ually  encroached  upon  the  prerogatives  of  the  crown  until 
but  few  residuary  powers  remain.  In  America  we  were 
supposed  to  have  started  out  with  an  Executive  with  care 
fully  defined  powers,  but  we  are  now  developing  one  with 
prerogatives  which  must  be  the  envy  of  crowned  heads. 

1  Dooley  vs.  U.  S.,  182  U.  S.,  222  et  seq. 


CHAPTER  IV 

I.   THE   POLITICAL  STATUS  OF,  AND  CIVIL  RIGHTS  IN, 
OUR  INSULAR  POSSESSIONS 

THE  treaty  of  Paris  (1898)  stipulated  that  the  "civil 
rights  and  political  status  of  the  native  inhabitants  of  the 
territories  hereby  ceded  to  the  United  States  shall  be  de 
termined  by  the  Congress."  There  is  here  no  promise  of 
United  States  citizenship,  much  less  of  incorporation,  as 
states.  The  Administration  proceeded  on  the  assumption 
that  "  Congress  in  legislating  for  territories  outside  of  the 
boundaries  of  the  several  states  of  the  Union  is  not  bound 
by  the  limitations  imposed  by  the  Constitution,"  *  and  that 
until  Congress  should  act  the  Executive  had  practically 
plenary  power  in  governing  such  territories. 

As  a  matter  of  course  the  islands  were  treated  as  foreign 
during  the  continuance  of  the  war,  and  duties  were  col 
lected  on  goods  coming  from  them  into  the  United  States. 
But  after  the  proclamation  of  peace  the  same  policy  was 
still  pursued.  In  the  case  of  De  Lima  vs.  Bidwell 2  the 
Supreme  Court  held  that  duties  so  collected  were  unlaw 
fully  exacted,  since  by  the  establishment  of  the  permanent 
sovereignty  and  jurisdiction  of  the  United  States  over 
Porto  Rico,  the  latter  ceased  to  be  "foreign"  territory, 
so  that  no  duties  could  be  levied  under  the  Dingley  Act. 
Four  justices  dissented  on  the  ground  that  territory  was 
foreign  so  far  as  related  to  customs  until  Congress  made 

1  Magoon,  120.  a  ^  U.  S. 

505]  321 


322  MILITARY  GOVERNMENT  [506 

it  domestic  by  extending  the  customs  laws.  Louisiana  and 
Tampico  were  cited  as  precedents,  the  absence  of  law  being 
taken  as  the  ground  of  the  decision  in  regard  to  the  latter 
in  Fleming  vs.  Page. 

It  naturally  followed  that  the  same  majority  should  de 
clare,  in  Dooley  vs.  United  States,1  that  duties  collected 
by  the  President  and  his  military  government  in  Porto 
Rico  after  April  n,  1899,  upon  goods  coming  from  the 
United  States,  were  unlawfully  exacted.  But  they  held  that 
similar  duties  collected  before  the  treaty  of  peace  were  law 
fully  exacted.  Also,  that  the  military  government  was 
rightfully  continued  after  the  treaty. 

On  May  i,  1900,  the  act  of  April  12,  commonly  called 
the  Foraker  Act,  which  levied  duties  upon  goods  passing 
between  Porto  Rico  and  the  United  States,  became  oper 
ative.  This  act  a  majority  of  the  Court,  consisting  of 
Mr.  Justice  Brown  and  the  four  dissenting  justices  in  the 
De  Lima  case,  held  to  be  constitutional.2  Mr.  Justice 
Brown  had  sided  with  the  majority  in  the  De  Lima  case 
in  saying  that  Porto  Rico  ceased  to  be  foreign  territory 
with  the  treaty  of  cession.  He  now  held  that  Congress,  in 
dealing  with  such  parts  of  the  United  States  as  have  not 
been  erected  into  states,  are  not  trammeled  by  the  limita 
tions  of  the  Constitution,  except  such  as  go  to  the  root  of 
their  power  to  act  at  all.  The  requirement  that  "  all  duties, 
imposts  and  excises  shall  be  uniform  throughout  the  United 
States  "  applied,  in  his  opinion,  only  to  the  States.  The 
other  four  judges,  however,  based  their  decision  on  the 
contention  that  new  territory  can  be  incorporated  into  the 
Union,  a  union  of  States  and  Territories,  neither  by  con 
quest  nor  by  treaty,  but  only  by  act  of  Congress.  As  no 
such  action  had  been  taken  in  regard  to  Porto  Rico,  it  was 

1  182  U.  S.  2  Downs  vs.  Bidwell,  182  U.  S.,  244  et  seq. 


507]          POLITICAL  STATUS  AND  CIVIL  RIGHTS  333 

still  foreign  "  in  a  domestic  sense/'  at  least  so  far  as  re 
lated  to  the  customs.  But  this  principle  had  been  repudi 
ated  and  the  opposite  affirmed  as  law  in  the  immediately- 
preceding  De  Lima  case.  As  four  of  the  justices  prac 
tically,  and  the  other  four  very  strongly  repudiated  the 
position  assumed  by  Mr.  Justice  Brown,  the  decision  is  not 
altogether  satisfactory  to  the  juristic  mind.1 

In  the  second  Dooley  case  the  Court  sustained  that  clause 
of  the  Foraker  Act  which  levied  duties  in  Porto  Rico  on 
goods  coming  from  the  United  States.  The  plaintiffs  con 
tended  that  this  was  an  export  tax,  hence  unconstitutional. 
But  a  bare  majority  cited  the  De  Lima  case,  from  which 
four  of  this  majority  had  dissented,  to  show  that  Porto 
Rico  was  no  longer  foreign  territory.  This  being  true,  a 
tax  on  goods  carried  from  New  York  to  Porto  Rico  could 
not  be  a  tax  on  exports.  For,  as  used  in  the  Constitution, 
the  word  export  referred  only  to  foreign  commerce.  Chief 
Justice  Fuller  spoke  for  those  dissenting.  If  Porto  Rico 
was  foreign,  the  case  was,  he  declared,  clear,  for  "  no  tax 
or  duty  shall  be  laid  on  articles  exported  from  any  State." 
Likewise  if  domestic,  for  the  Court  had  held2  that  cus 
toms  duties  could  be  levied  only  on  foreign  commerce,  while 
this  tax  purported  to  be  a  customs  tax.  It  was,  said  the 
chief  justice,  a  tax  on  exports.  The  idea  that  there  was  a 
sea  change  by  which  goods  became  imports  on  reaching 
Porto  Rico,  before  they  had  mingled  with  the  mass  of 
common  property,  he  ridiculed.  As  reasonably  might  the 
United  States  station  revenue  cutters  off  the  coast  to  exact 
duties  on  all  goods  leaving  the  United  States. 

1  Professor   John  W.   Burgess   wittily  expressed   it  in   saying  that 
"  Mr.  Justice  Brown  delivered  the  opinion  of  the  court,  eight  justices 
dissenting." 

2  Woodruff  vs.  Parham,  8  Wall,  123. 


MILITARY  GOVERNMENT  [508 

The  Fourteen  Diamond  Rings  case  was  one  affecting1  the 
Philippines  in  the  same  way  as  the  De  Lima  case  affected 
Porto  Rico,  and  it  was  decided  in  the  same  way.1  March 
8,  1902,  the  Philippine  Tariff  Bill  became  a  law.  This  re 
quires  that  imports  into  the  islands  from  the  United  States 
shall  pay  the  duties  laid  by  the  Philippine  Commission  on 
like  imports  from  all  countries,  and  that  imports  into  the 
United  States  from  the  Philippines  shall  pay  a  duty  of 
seventy-five  per  cent,  of  the  Dingley  duties,  less  any  ex 
port  taxes  laid  by  the  Commission.  It  would  seem  that  the 
De  Lima  case,  while  a  particular  one,  as  all  cases  are, 
settled  principles  general  enough  to  have  affected  the  action 
of  the  Treasury  Department  elsewhere  than  in  Porto  Rico, 
but  not  so,  for  duties  were  assessed  on  goods  coming  from 
the  Philippines  until  the  Fourteen  Diamond  Rings  case  was 
decided.2  Now,  of  course,  they  are  levied  under  the  act 
of  March  8,  1902. 

It  may  be  that  we  have  not  yet  seen  the  end  of  insular 
cases,  for  the  exact  status  of  Tutuila  seems  as  yet  unde 
termined.  Even  the  Administration,  judged  by  its  con 
duct,  does  not  seem  to  be  quite  sure  of  its  ground.  An  im 
porter  at  Honolulu  paid  under  protest  duties  assessed  there 
on  mats  coming  from  Tutuila,  and  appealed  to  the  Treas 
ury  Department  for  a  ruling  that  his  goods  had  come  from 
American  territory  and  were  therefore  duty-free.  Accord 
ing  to  published  statements,  the  Department  at  first  held 
that,  by  the  convention  of  December  2,  1899,  the  United 
States  had  assumed  a  protectorate  over  the  island,  but  had 
not  "obtained  title  for  sovereignty,"  8  but  the  final  decision 
was  that  such  goods  were  not  subject  to  duty.4 

1  183  U.  S.,  138  et  seq. 

2  Letter  from  Treasury  Department  to  the  writer,  September  20,  1902. 

3  Current  History,  xii,  30. 

*  Letter  from  Treasury  Department,  Sept.  20,  1902. 


509]          POLITICAL  STATUS  AND  CIVIL  RIGHTS  325 

The  decision  that  we  had  not  obtained  title  for  sover 
eignty,  if  such  a  position  ever  was  taken,  does  not  seem  to 
harmonize  with  the  President's  proclamation  at  the  raising 
of  our  flag,  for  then  it  was  announced  that  we  had  assumed 
the  "  sovereignty  and  protection  "  of  the  islands.  On  that 
occasion  the  sovereignty  was  formally  ceded  by  the  chiefs, 
but  no  action  has  ever  been  taken  on  this  cession  by  either 
the  treaty-  or  law-making  power.  The  convention  of  1899 
contained  no  grant  of  sovereignty,  but  only  one  of  the 
rights  and  claims  of  the  other  signatory  powers.  The  third 
article  did  indeed  stipulate  that  the  three  signatory  powers 
should  continue  to  enjoy,  in  respect  of  commerce  and  navi 
gation  in  all  the  islands  of  the  group,  privileges  "  equal  to 
those  enjoyed  by  the  sovereign  power,  in  all  ports  which 
may  be  open  to  the  commerce  of  either  of  them,"  and  this 
evidently  refers  to  the  "  sovereign  power  "  of  the  United 
States  and  Germany  in  the  islands  allotted  to  them  re 
spectively.  At  best,  however,  this  is  a  very  shadowy  title 
to  sovereignty,  and  it  is  open  to  doubt  whether  we  have 
any  other  than  that  which  was  "  assumed  "  by  the  Exec 
utive  in  taking  possession. 

The  situation  at  this  writing  (April,  1904)  is  that  no 
law  of  Congress  has  as  yet  been  passed  to  regulate  the 
commercial  relations  of  the  American  islands  in  Samoa. 
Whatever  the  basis  of  our  title  to  the  sovereignty  of  Tutuila, 
the  Secretary  of  the  Treasury  considered  it  valid  enough 
to  justify  an  order,  in  the  absence  of  legislation  by  Con 
gress,  to  allow  the  products  of,  and  importations  into,  the 
islands  to  be  brought  into  the  United  States  free  of  duty.1 
Granting  that  our  title  is  good,  there  would  have  been  no 
other  course  to  follow  in  view  of  the  law  as  laid  down  in 
De  Lima  vs.  Bidwell.  But  one  may  be  somewhat  con- 

1  Letter  from  Treasury  Department,  March  3, 1904. 


MILITARY  GOVERNMENT 

fused  on  learning  that  the  Secretary  of  the  Navy  admin 
isters  the  customs  of  Tutuila  *  without  regard  to  our  rev 
enue  laws,  and  even  collects  duties  on  goods  imported  from 
the  United  States.  Clearly  there  is  a  violation  of  the  law 
in  one  department  or  the  other.  If  the  islands  are  a  part 
of  the  United  States,  the  Secretary  of  the  Navy  is  acting 
in  contravention  of  the  law  as  laid  down  in  Dooley  vs.  the 
United  States.  If  not,  the  Secretary  of  the  Treasury  19 
violating  our  revenue  laws  in  allowing  the  free  importa 
tion  of  goods  from  a  foreign  country.  By  passing  through 
Tutuila,  goods  from  any  foreign  country  may  enter  the 
United  States  without  paying  duties  as  high  as  those  ex 
acted  in  our -ports,  since  the  rates  in  Tutuila  are  consid 
erably  lower  than  those  imposed  by  our  revenue  laws, 
and  without  paying  anything  whatever  into  the  national 
treasury. 

The  situation  is  not  much  clarified  when  we  learn,  in  the 
words  of  Captain  Sebree,  sometime  governor  of  Tutuila, 
that  "  it  has  been  decided  that  the  islands  are  not  foreign 
in  the  sense  that  the  captain  of  an  American  man-of-war 
has  the  duties  of  a  United  States  consul  in  regard  to  sailors 
on  American  merchant  ships;  on  the  other  hand,  that  they 
are  not  domestic  territory,  in  that  our  foreign  consular  in 
voices  cannot  be  demanded  or  required."  a 

On  the  question  of  citizenship  and  civil  rights  the  courts 
have  not  yet  pronounced  judgment.  The  treaty  of  peace 
with  Spain  permitted  such  of  the  inhabitants  of  the  ceded 
and  the  relinquished  territories  as  were  natives  of  the 
Spanish  peninsula  to  elect  to  retain  Spanish  allegiance,  but 
it  was  provided  that,  in  default  of  such  election,  they  should 

1  Letter  from  Treasury  Department,  March  3,  1904. 
3  Independent,  Nov.  27,  1902,  p.  2812. 


ijn]          POLITICAL  STATUS  AND  CIVIL  RIGHTS  327 

be  held  "  to  have  renounced  it  [Spanish  allegiance]  and  to 
have  adopted  the  nationality  of  the  territory  in  which  they 
may  reside."  For  Spanish  subjects  inhabiting  the  terri 
tories  in  question  who  were  not  natives  of  the  peninsula, 
no  opportunity  for  option  of  Spanish  allegiance  was  re 
served,  and  it  was  obviously  intended  that  their  nationality, 
like  that  of  natives  of  Spain  who  failed  to  make  the  requi 
site  election,  should  follow  the  nationality  of  the  territory 
in  which  they  resided.  It  was  also  stipulated  by  the  treaty 
of  peace  that  "  the  civil  rights  and  political  status  of  the 
native  inhabitants  o*f  the  territories  ceded  "  to  the  United 
States  should  be  "  determined  by  the  Congress."  In  its 
attempt  thus  broadly  to  commit  the  determination  of  the 
rights  and  privileges  of  the  annexed  peoples  to  the  dis 
cretion  of  Congress  the  late  treaty  of  Paris  differs  from 
any  of  our  previous  treaties.  Those  who  so  elect  are,  by 
the  treaty,  given  American  nationality,  but  it  is  to  be  ob 
served  that  nationality  and  citizenship  are  not  always  iden 
tical.  Whether  and  how  far  that  distinction  can  be  main 
tained  in  the  United  States  is  at  least  open  to  debate.  But, 
while  the  courts  have  not  yet  pronounced  judgment  on  the 
question  of  citizenship  and  civil  rights,  the  question  of 
nationality  has  been  passed  upon  by  the  court  of  last  resort. 
In  August,  1902,  Isabella  Gonzales,  a  native  of  Porto 
Rico,  was  detained  at  Ellis  Island  and,  upon  examination, 
was  excluded  from  the  United  States  on  the  ground  that 
she  was  an  alien  likely  to  become  a  public  charge.  She 
then  applied  to  a  United  States  circuit  judge  fcr  a  writ  of 
habeas  corpus,  but  this  was  refused  on  the  ground  that 
the  act  of  Congress  declaring  the  inhabitants  of  Porto  Rico 
to  be  citizens  thereof  and  to  be  entitled  to  the  protection 
of  the  United  States  had  not  naturalized  them  as  citizens 
of  the  United  States,  and  that  they  were  therefore  aliens 
and  subject  to  the  law  regulating  the  admission  of  aliens. 


328  MILITARY  GOVERNMENT 

The  Secretary  of  the  Treasury,  who  then  administered  the 
immigration  laws,  addressed  the  Secretary  of  War  and 
called  his  attention  to  this  decision  in  order  that  the  neces 
sary  steps  might  be  taken  to  advise  the  citizens  of  the 
Philippine  Islands  that,  upon  their  arrival  at  ports  of  the 
United  States,  they  would  be  "  examined  as  aliens  under 
the  Immigration  and  Chinese  Exclusion  Laws." 

In  reply  the  Hon.  Charles  E.  Magoon,  law  officer  of 
the  War  Department,  gave  it  as  his  opinion  that,  accord 
ing  to  the  decision  of  the  Supreme  Court  in  the  Insular 
Cases,  the  geographical  limits  of  the  United  States  had 
been  extended  so  as  to  include  Porto  Rico  and  the  Philip 
pines.  This  being  true,  the  question  in  this  case  was  not 
whether  the  inhabitants  of  the  islands  were  aliens,  but 
whether  our  laws  respecting  immigration  restricted  aliens 
lawfully  residing  within  our  geographical  boundaries  from 
passing  freely  from  one  place  to  another.  The  power  to 
regulate  the  migration  of  aliens  within  our  borders  cer 
tainly  belonged  to  Congress,  but  had  it  been  exercised? 
The  act  of  April  29,  1902,  reenacted  the  Chinese  Exclu 
sion  Laws,  and  at  the  same  time  so  amended  them  as  to 
forbid  Chinese  laborers,  not  citizens  of  the  United  States, 
from  emigrating  from  the  islands  to  the  mainland  of  the 
United  States,  As  the  enforcement  of  these  laws  then 
belonged  to  the  Treasury  Department,  the  War  Depart 
ment  was,  said  Judge  Magoon,  without  jurisdiction  or 
responsibility  in  the  matter  of  the  treatment  accorded  to 
such  of  the  inhabitants  as  sought  to  leave  the  islands  and 
pass  to  the  mainland.  Still  it  seemed  proper  and  necessary 
for  the  War  Department  to  cause  it  to  be  known  that  resi 
dents  of  the  Philippine  Islands,  other  than  citizens  of  the 
United  States,  seeking  to  enter  a  port  subject  to  the  juris 
diction  of  the  Treasury  Department  "  will  be  examined  as 
aliens  under  the  provisions  of  the  Immigration  and  Chinese 


513]'         POLITICAL  STATUS  AND  CIVIL  RIGHTS 

Exclusion  Laws."  The  Supreme  Court,  in  the  Insular 
Cases,  has  held  that,  in  the  absence  of  Congressional  legis 
lation  to  the  contrary,  the  products  of  our  new  territory 
were  entitled  to  free  entry  in  the  ports  of  the  United  States. 
Should  not  a  like  rule  apply  to  the  inhabitants  ?  *  This 
view  was  sustained  by  the  Supreme  Court,  which  held  that 
a  native  of  Porto  Rico,  who  was  residing  in  the  island  at 
the  time  of  cession,  could  not  be  excluded  from  the  United 
States  as  an  alien  immigrant.2 

But,  while  the  Court  decided  that  the  petitioner  was  not 
an  "  alien/'  nothing  was  said  upon  the  question  of  citizen 
ship.  By  the  act  of  April  12,  1900,  to  establish  a  civil 
government  for  Porto  Rico,  the  inhabitants  of  the  island 
who  were  Spanish  subjects  when  the  treaty  of  peace  was 
proclaimed,  including  natives  of  the  peninsula  who  failed 
to  elect  Spanish  allegiance,  were  declared  to  be  "  citizens 
of  Porto  Rico";  while,  by  the  act  of  July  i,  1902,  to 
establish  a  civil  government  for  the  Philippines,  the  in 
habitants  of  those  islands  were,  under  like  circumstances, 
declared  to  be  "  citizens  of  the  Philippine  Islands."  The 
evident  intent  of  Congress  was  to  exclude  them  from  citi 
zenship  in  the  United  States. 

If  the  inhabitants  of  the  islands  ceded  by  Spain  have 
not  become  citizens  of  the  United  States,  it  logically  fol 
lows  that  they  are  not  entitled  to  all  the  rights,  privileges, 
and  immunities  guaranteed  to  such  citizens  by  the  Con 
stitution.  The  Philippine  act  of  July  i,  1902,  however, 
while  not  purporting  to  "  extend  the  Constitution  "  to  the 
Filipinos,  does  assure  them  of  the  substantial  benefit  of  the 

1  Opinion  rendered  Nov.  6,  1902.  Kindly  furnished  in  MS.  by  the 
author. 

2Gonzales  vs.  Williams,  24  Supreme  Court  Reporter,  177;  decided 
January  4,  1904.  See  Magoon,  op.  cit.,  120. 


330  MILITARY  GOVERNMENT 

bill  of  rights.  How  far  they  can  acquire  political  rights 
by  migrating  to  the  States  remains  to  be  seen.  Since  the 
Fourteenth  Amendment  provides  that  all  persons  born  or 
naturalized  in  the  United  States  and  subject  to  the  juris 
diction  thereof  are  citizens  of  the  United  States,  it  is  hard 
to  see  how  the  "  citizens  "  of  Porto  Rico  and  the  Philip 
pines  can,  upon  migration  to  the  States,  be  denied  political 
and  civil  rights  any  more  than  the  citizens  of  New  Mexico 
or  Arizona. 


INDEX 


Adams,  J.  Q.,  35,  60,  85  et  seq. 
Admiralty  Court  in  California,  202, 

205  et  seq. 

Aguinaldo,  284  et  seq. 
Alaska,  279  et  seq. 
Alvarez,  Manuel,  "Governor"  of 

N.  M  ex.,  141,  142,  145. 


seq.;  character  of  the  military 
administration,  239  et  seq.\ 
manifestations  of  discontent, 
254  et  seq,;  formation  of  state 
government,  266  et  seq. 
Callava,  Spanish  governor  of  Flor- 
\An  ^  •"•  °-  °' 


ERRATA. 

On  page  132,  footnote,  read  infra,  210. 

On  page  176,  footnote,  read  Supra,  101  et  seq. 

On  page  155,  footnote,  read  Supra,  129,  131. 

On  page  203,  footnote,  read  Infra,  238. 

On  page  212,  footnote,  read  Infra,  225. 


[ex.,  134, 


Caihoun";  J*   S.',  "m  N!  M 
152,  157- 

California,  conquest  of,  159  et  seq.; 
annexed  by  Stockton,  165,  and 
by  Kearny,  193;  social  and  po 
litical  condition,  168  et  seq.; 
revolt  and  reconquest,  172  et 
seq.;  Fremont'sadministration, 
181  et  seq. ;  instructions  for  the 
government,  101,  186  et  seq.; 
reorganized  by  Kearny,  193  et 
seq.;  customs  regulations,  195 
et  seq.;  status  of,  203  et  seq.; 
internal  administration,  228  et 

515] 


uiyiilii9l!)uiuig.,  iuga^. 

Complaints  against  the  military 
government,  143  et  seq.,  149  et 
seq.,  250  et  seq.,  261  et  seq. 

Conflicts  with  military  government, 
145,  233  et  seq. 

Congress,  acts  of,  relating  to  Louis 
iana,  24,  30  et  seq. ,  44;  extend 
revenue  laws  to  Louisiana,  34, 
and  to  Florida,  65;  discuss  the 
occupation  of  West  Florida,  51 
et  seq.;  acts  of,  relating  to 
Florida,  54,  56,  65,  93,  94,  98; 
discuss  the  conduct  of  Jackson 
in  Florida,  61,  90;  debate  on 

331 


330 


MILITARY  GOVERNMENT 


bill  of  rights.  How  far  they  can  acquire  political  rights 
by  migrating  to  the  States  remains  to  be  seen.  Since  the 
Fourteenth  Amendment  provides  that  all  persons  born  or 
naturalized  in  the  United  States  and  subject  to  the  juris 
diction  thereof  are  citizens  of  the  United  States,  it  is  hard 
to  see  how  the  "  citizens  "  of  Porto  Rico  and  the  Philip 
pines  can,  upon  migration  to  the  States,  be  denied  political 
and  civil  rights  any  more  than  the  citizens  of  New  Mexico 
or  Arizona. 


INDRX 


Adams,  J.  Q.,  35,  60,  85  et  seq. 

Admiralty  Court  in  California,  202, 
205  et  seq. 

Aguinaldo,  284  et  seq. 

Alaska,  279  et  seq. 

Alvarez,  Manuel,  "Governor"  of 
N.  Mex.,  141,  142,  145. 

Amelia  Island,  55,  56,  57,  63  etseq. 

American  Ins.  Co.  vs.  Canter,  138. 

Armijo,  Governor  of  N.  Mex.,  115. 

Archives  in  Florida,  77,  84,  92. 

Bancroft,  George,  Secretary  of  the 
Navy,  159,  187. 

Bates  treaty,  288. 

Bear  Flag  Revolt,  170. 

Bell,  Captain,  in  East  Florida,  71, 
91. 

Bent,  Charles,  Gov.  of   N.  Mex., 
115,  n8. 

Benton,  T.  H.,  130,  258. 

Birkhimer,  W.  E.,  on  martial  law, 
19. 

Blair,  F.  P.,  in  N.  Mex.,  116, 121. 

Brackenridge,  H.  M.,  in  Fla.,  69 
et  seq. 

Buchanan,    James,     Secretary     of 
State,  132,  209  et  seq. 

Burnett,  P.  H.,  267,  271,  274. 

Bunau-Varilla,  316. 

Calhoun,  J.  C.,  57,  64,  131. 

Calhoun,  J.  S.,  in  N.  Mex.,  134, 
152,  157- 

California,  conquest  of,  159  et  seq.; 
annexed  by  Stockton,  165,  and 
by  Kearny,  193;  social  and  po 
litical  condition,  168  et  seq.; 
revolt  and  reconquest,  172  et 
seq.;  Fremont's  administration,  j 
181  et  seq.;  instructions  for  the 
government,  101,  186  et  seq.; 
reorganized  by  Kearny,  193  et 
seg.',  customs  regulations,  195 
et  seq.;  status  of,  203  et  seq.; 
internal  administration,  228  et 

515] 


seq.;  character  of  the  military 
administration,  239  et  seq.\ 
manifestations  of  discontent, 
254  et  seq.;  formation  of  state 
government,  266  et  seq. 

Callava,  Spanish  governor  of  Flor 
ida,  66,  77,  80,  84. 

Captured  funds,  293,  305. 

Castine,  Maine,  125. 

Castro,  D.  J.,  in  California,  162. 

Chase,  Chief  Justice,  on  military 
government,  15. 

Citizenship,  326  et  seq. 

"  Civil  Fund,"  212,  224,  273. 

Civil  government,  instructions  for, 
loi,  186,  196,  282  et  seq.,  286. 

Civilian  officers  under  military  gov 
ernment,  62,  115  et  seq.,  128, 
195,  200,  218. 

Civil  rights,  321,  326  et  seq. 

Claiborne,  W.  C.  C.,  24,  25,  39, 
41,  43,  48. 

Clay,  Henry,  defends  bill  for  gov 
ernment  of  Louisiana,  52. 

Collier,  J.  C.,  collector  in  Califor 
nia,  223. 

Colton,  Walter,  232,  249. 

Columbia,  negotiations  with,  315. 

Commerce,  regulation  of,  130  et 
seq.,  195  et  seq.,  289  et  seq. 

Complaints  against  the  military 
government,  143  et  seq.,  149  et 
seq.,  250  et  seq.,  261  et  seq. 

Conflicts  with  military  government, 
145,  233  et  seq. 

Congress,  acts  of,  relating  to  Louis 
iana,  24,  30  et  seq.,  44;  extend 
revenue  laws  to  Louisiana,  34, 
and  to  Florida,  65;  discuss  the 
occupation  of  West  Florida,  51 
et  seq.;  acts  of,  relating  to 
Florida,  54,  56,  65,  93,  94,  98; 
discuss  the  conduct  of  Jackson 
in  Florida,  61,  90;  debate  on 

331 


332 


INDEX 


[516 


the  conquest  of  N.  Mex.,  106 
et  seq.',  acts  of,  relating  to  N. 
Mex.  and  California,  157,  202, 
227,  275;  Alaska,  279;  Hawaii, 
281;  insular  possessions,  281, 
290,  310,  319,  322,  328  et  seq. 

Conrad,  C.  M.,  Secretary  of  War, 
146,  156,  157. 

Constitution  of  Spain,  82,  83,  89. 

Constitution  of  the  United  States, 
17,  30  et  seq.,  201,  210  et  seq.; 


3i3>  330. 
suls 


Consuls  of  U.  S.  in  new  territory, 

300  et  seq. 
Convention  in  West  Florida,  46  et 

seq.;  in    N.    Mex.,    131,    134, 

139;    in    California,    265,    268, 

271  et  seq. 

Courts,  see  Judiciary. 
Crawford,    G.    W.,    Secretary    of 

War,  136,  138,  211,  268  et  seq., 

275- 
Gushing,     Attorney-General,     on 

martial  law,  213. 
Customs  laws  in  Louisiana,  33  et 

seq.;  in  Florida,  45,  55,  63,  64, 

65;  in  N.  Mex.,  115,  129,  130; 

in  California,  166,  170,  195   et 

seq.,  212  et  seq.,  256;    in  the 

Philippines,  289  et  seq.,  296;  in 

Porto    Rico,    321   et  seq.;    in 

Tutuila,  324  et  seq. 
Davis,  Garrett,  on  annexation,  106. 
Davis,  George  W.,  303,  306,  317. 
Dewey,  George,  282. 
Doniphan,   A.   W.,    in  N.   Mex., 

105,  117. 
Douglass,   S.   A.,  on  annexation, 

107. 
Elections   in    N.   Mex.,   105,   137, 

139,  140;  in  California,  166,  231 

et  seq.,  234,  251,  260,  264. 
Export  duties   in   California,   199; 

in  insular  possessions,  290,  323 

et  seq, 

Fillmore,  M.,  137,  140,  147,  148. 
Fitzpatrick,  T.,  Indian  Agent,  149, 

158. 

Fleming  vs.  Page,  112,  322. 
Florida,   West,  revolution   in,  46; 

seized  by  U.  S.,  47  et  seq. 
Florida,  seized  by  U.  S.,  55,  56,  58; 

returned  to  Spain,  56,  63;  ac- 

?uired  by  treaty,  65;  Governor 
ackson's    administration     of, 
68  et  seq. 


Fremont,  J.  C.,  in  California,  161 
et  seq.,  170,  172,  175,  180,  183, 
190. 

Fromentin,  E.,  "Judge  of  the 
United  States  for  West  Flor 
ida,"  44,  79,  86  et  seq. 

Gaines,  General,  in  Florida,  64. 

Gallatin,  Albert,  on  revenue  laws 
in  Louisiana,  33. 

"  Grapeshot,"  The,  208,  305. 

Great  Britain  on  occupation  of  Flor 
ida,  49. 

Griswold,  Roger,  on  bill  for  gov 
ernment  of  Louisiana,  30. 

"  Government  Payment,"  185, 197. 

Habeas  Corpus,  32,  79,  87,  88,  105, 
113,  303,  327. 

Hague  Convention  on  martial  law, 
16;  on  oath  of  allegiance,  113; 
on  military  contributions,  200, 
236. 

Halleck,  H.  W.,  on  martial  law, 
19;  on  municipal  and  political 
laws  in  conquered  territory,  37, 
in;  on  right  of  insurrection, 
124;  in  California,  246,  271  et 
seq. 

Hawaii,  281. 

Hiiltman,  F.,  debt  of  Fremont  to, 
185. 

Indian  depredations,  149  et  seq., 
240  et  seq. 

Indians,  Christian,  in  California, 
237  et  seq. 

Insular  Cases,  321  et  seq. 
|  Insurrection  in  N.  Mex.,  117;  right 
of,    124;  in    California,    173  et 
seq.;  in   the  Philippines,   285, 
287. 

Instructions  for  civil  government, 
186,  188,  189,  282,  284  et  seq. 

Jackson,  Andrew,  18,  57,  59,  66, 
68,  69  etseq.,  73,  82  et  seq.,  86, 
93  et  seq. 

Jackson,  Mrs.  Andrew,  67,  74,  95. 

Jefferson,  Thomas,  23,  30,  32,  33, 
36,  45. 

Judiciary  in  Louisiana,  28;  in  Flor 
ida,  62  et  seq. ,  69,  70,  78  et  seq.; 
in  N.  Mex.,  115,  i2oetseq.,  144, 
154;  in  California,  205,  -228  et 
seq.,  249  et  seq.;  in  the  Phil 
ippines,  297  et  seq.;  in  Porto 
Rico,  303  et  seq. 

Jury  trial,  28,  74,  105,  154,  230,  249, 
305. 


INDEX 


Kearny,  S.  W.,  101,  105,  116,  174,  j 
177  et  seq.,  179,  180,  181,  189, 
193,  194,  202,  203,  238,  245  et 
seq. 

Kearny  Code,  105,  131,  154,  156. 

Kemper,  Reuben,  in  West  Florida, 
46,  47,  49. 

King,  T.  B.,  in  California,  265, 
272. 

Land  grants  in  California,  203  et 
seq.,  238. 

Laussat  in  Louisiana,  36,  40. 

Legislation  by  the  military  gover 
nor,  63,  69,  70,  93,  105,  129, 
139,  165,  196,  205,  228  et  seq., 
289  et  seq.,  296  et  seg.,  308  et 
seq. 

"Legislative  Assembly"  of  San 
Francisco,  260  et  seg.,  266,  269. 

"Legislature"  of  N.  Mex.,  129, 
141,  143,  145,  150. 

Leitensdorfer  vs.  Webb,  148. 

Louisiana,  ceded  to  the  U.  S.,  23; 
acts  of  Congress  for  the  gov 
ernment  of,  24,  34,  44;  condi 
tion  of,  25  et  seg.;  revenue 
laws  in,  33  et  seg.;  Spanish  ex 
pelled  from,  39. 

McCall,  G.  A.,  in  N.  Mex.,  136, 
158. 

McKinley,  William,  282,  284  et 
seg.,  302. 

Madison,  James,  38,  45,  47,  50,  54. 

Magoon,  Charles  E.,  290,  318,  328. 

Marcy,  W.  L.,  100,  122,  izoetseq., 
187,  201. 

Martial  law,  15,  16,  i&et  seg'.,  167, 
172. 

Mason,  R.  B.,  military  governor 
of  California,  188,  198,  200,  202, 
203,  209,  216,  218,  221,  226,  227, 
229,  233,  235,  239,  240  et  seg., 
247,  250. 

May  son,  J.  Y.,  Secretary  of  the 
Navy,  188. 

Matthews,  George,  in  Amelia 
Island,  55. 

Mexico,  War  with,  101. 

Military  Commissions,  228,  298,303. 

Military  Contributions,  200,  236, 
283. 

Military    government,   denned,   17  j 
et  seg.;    acts   of   annulled   by 
Congress,    93,    309;    continues 
after  peace,  148. 


333 

Mission  Lands  in  California,  237. 

Mitchell,  Governor  of  Georgia,  in 
Amelia  Island,  56. 

Monroe,  James,  50,  61,  81,  97. 

Mumford  vs.  Wardwell,  204. 

Municipal  law  in  conquered  terri 
tory,  37,  138,  215,  228,  296  et 
seg. 

Munroe,  J.  M.,  in  New  Mex.,  137, 
140,  141,  145,  151,  155,  156. 

New  Mexico,  conquest  and  annex 
ation  of,  101  et  seg.;  debate  in 
Congress  on,  106  et  seg.;  con 
dition  of,  114  et  seg.;  revolt  of, 
117  et  seg.;  trials  for  treason 
in,  121  etseq.;  attempts  to  form 
a  state  government,  134  et  seg.: 
Indian  depredations  in,  149  et 
seg. 

Oath  of  allegiance,  175,  203. 

Onis,  Spanish  minister,  60,  62. 

Otero,  A.  J.,  134. 

Otis,  E.  S.,  283  et  seg.,  293,  294, 
301. 

Panama  treaty,  316  et  seq.;  Canal 
Commission,  317. 

Philippine  Commission,  286,  290, 
293,  302,  311,  3i8. 

Philippine  Islands,  captured,  282; 
military  rule  in,  289  et  seq. 

Philippine  tariff,  290,  324. 

Pico,  Pio,  Governor  of  California, 
208. 

Polk,  James  K.,  no,  133,  142,  196. 

Porto  Rico,  captured,  303;  U.  S. 
provisional  court  in,  so^etseg.; 
given  a  territorial  government, 
310. 

Price,  S.  W.,  in  N.  Mex.,  118, 
no,  130. 

Provisional  court  in  Porto  Rko,  304 
et  seq. 

Religion  in  Louisiana,  26,  29,  37; 
in  Florida,  74,  91. 

Revenue  laws  of  Spain  in  Louis 
iana,  33  et  seq.  and  in  the 
Philippines,  289  et  seq.,  295;  of 
U.  S.  extended  to  Louisiana, 
34,  and  to  Florida,  65;  of  mili 
tary  government  in  N.  Mex. 
and  California,  104,  129,  130, 
1 66,  196  et  seq.,  215;  of  the  U. 
S.  in  N.  Mex.  and  California, 
131, 214;  of  Philippine  Commis 
sion,  290;  of  the  Foraker  Act, 


334 


INDEX 


322;  of  the  Philippine  tariff 
law,  324;  of  the  U.  S.  in  insular 
possessions,  321  et  seq.;  in 
Tutuila,  324  et  seq. 

Revolt  in  N.  Mex.,  117  et  seq.;  in 
California,  172  et  seq. 

Roosevelt,  T.,  289,  315  et  seq. 

Root,  Elihu,  Secretary  of  War, 
292,  293,  300. 

Salmon,  Spanish  charge,  85. 

Samoa,  see  Tutuila. 

Scott,  Winfield,  188. 

Sebree,  Captain  in  Tutuila,  326. 

Seddon,  of  Virginia,  on  conquest 
of  N.  Mex.,  109. 

Shubrick,  Commodore,  in  Califor 
nia,  176,  188,  189,  198. 

Sloat,  J.  D.,  in  California,  159,  160, 
164,  171. 

Smith,  H.  N.,  elected  delegate  to 
Congress  from  N.  Mex.,  135, 

137- 

Smith,  P.  F.,  in  California,  212, 
262,  268. 

Smith,  Robert,  Secretary  of  State, 
48,  49- 

Spanish  ordered  out  of  Louisiana, 
39;  out  of  Florida,  80,  85. 

Spooner  Act,  290. 

State  Government  in  California, 
271  et  seq. 

Stoddard,  Amos,  in  Upper  Louis 
iana,  43. 

Sulu  Archipeligo,  288. 

Supreme  Court,  of  U.  S.,  34,  112, 
125, 148,  204  et  seq.,  213  et  seq., 
306,  329;  of  N.  Mex.,  148;  of 
California,  205. 

Taft,  W.  H.,  293,320. 

Taney,  R.  B.,  on  conquered  terri 
tory,  112. 

Taylor,  Z.,  134,  147- 


j  Tilley,  B.  F.,  in  Tutuila,  312  et  seq. 
j  Trade  with  California,  195,  et  seq.; 
with    Philippines,    283,  289  et 
seq. 

I  Treason,  trials  for,  in  N.  Mex., 
103,  109,  121 ;  in  Philippines, 
301  et  seq. 

Treaty  with  France,  23,  35;  with 
Spain,  65,  285  et  seq.,  306  et 
seq.;  with  Mexico,  200;  with 
Russia,  279;  with  the  Sultan  of 
Sulu  (Bates  treaty) ,  288  et  seq.; 
with  Great  Britain  and  Ger 
many,  311;  with  Panama,  316 
et  seq. 

Troops,  behavior  of,  in  N.  Mex., 
150;  in  California,  241  et  seq., 
247. 

Tutuila,  Samoa,  acquired  by  treaty 
of  partition,  311;  government 
of,  assigned  to  the  Navy  De 
partment,  312;  sovereignty  of, 
$24etseq.;  revenue  laws  in,  324. 

Upper  Louisiana,  28,  43. 

Vessels,  naturalization  of,  223  et 
seq. 

Vigil,  D.,  Secretary  and  Governor 
of  N.  Mex.,  116,  119  et  seq., 
126,  128,  131,  135,  139,  145,  158. 

Walker,  R.  J.,  196,  201. 

Walton,  George,  Secretary  of  West 
Florida,  77,  81,  84,  95. 

Washington,  J.  M.,  in  N.  Mex., 
128,  130,  135,  150. 

Webster,  Daniel,  139. 

Weightman,    R.    H.,    "Senator" 


from  N.  Mex.,  143,  144. 
West  Florida,  53  et  seq. 
Wilkinson,  James,  24,  44,  56. 
Worthington,  W.  G.  D.,  Secretary 

of  East  Florida,  71,  92,  95. 


VITA 

DAVID  YANCEY  THOMAS  was  bom  in  Fulton  County, 
Kentucky,  January  19,  1872.  In  the  autumn  of  1890  he 
entered  Emory  College,  Oxford,  Georgia,  and  was  grad 
uated  with  the  degree  of  A.  B.  in  1894.  After  leaving 
college  he  taught  two  years  in  the  public  schools  of  Ala 
bama  and  Georgia.  During  the  years  1896-1898  he  was 
a  scholastic  fellow  in  Vanderbilt  University,  where  he  re 
ceived  the  degree  of  M.  A.  in  1898.  In  September,  1898, 
he  took  charge  of  the  department  of  Latin  and  Greek  in 
Hendrix  College,  Conway,  Arkansas,  and  remained  there 
three  years.  The  summers  of  1899  and  1900  were  spent 
in  the  study  of  history  at  the  University  of  Chicago.  In 
1901  he  was  awarded  a  university  fellowship  in  history  at 
Columbia  University,  where  the  year  1901-1902  was  spent 
in  the  study  of  history  and  political  science.  Before  leav 
ing  Columbia  he  was  elected  to  the  chair  of  history  and 
political  science  in  Hendrix  College.  He  has  published 
several  articles  on  historical,  educational,  and  literary  sub 
jects. 

335 


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Thomas,  D.Y. 

History  of  military 


Call  Number: 

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TU8 


